since, in such a case as we have last mentioned, the action would actually be brought against parties who had no interest in defending it, while the party who was really to be injured would have no opportunity of protecting himself. All corporations, whether sole or aggregate, and all Corporations, trustees or feoffees for any charitable who would purpose, otherwise be restrained from alienation, are empowered to make valid conveyances and assurances of lands, and to enter into all necessary agreements for the giving lands instead of tithes.

&c. may convey lands for this

purpose.

operate as a conveyance, &c.

An agreement for giving lands instead of tithe rent- Agreement for charge, as soon as it has been confirmed by the commis- giving lands to sioners, is to operate as a conveyance of such land to the tithe owner; and when conveyed it is to vest in and be deemed to be holden by him upon such uses and trusts in every respect as the tithes or tithe rent-charge, in exchange for which it has been given; and, for the purpose of making Persons under and completing such agreement, all persons under legal disability. disability, such as minors, idiots, lunatics, femes covert, persons beyond sea, &c. are by their guardian, committee of estate, husband or attorney respectively, or in default thereof by such person as the commissioners may nominate for that purpose, and whom the act empowers them to nominate under their hands and seal, empowered to convey lands.

which lands

It must be remembered that what is here said, unlike Time within the mode by which the commutation of tithes to tithe rentcharge is directed, is not of temporary interest, but that at may be given. any time during the continuance of the tithe commission it may be effected, provided the directions here mentioned are observed.

SECTION 8.

Of the Merger and Extinguishment of Tithe and Tithe
Rent-charge.

Formerly, although the tithe owner was also owner of the lands out of which the tithes were issuing, there was no mode by which a merger or extinguishment of them might be effected. Impropriate tithes were still kept distinct from the land, and, notwithstanding unity of possession, they were held under separate titles. It was, however, Persons seised provided by the first Tithe Commutation Act,' that it should in fee simple or in fee tail may be lawful for any person seised in possession of an estate in fee simple or fee tail of any tithes, or rent-charge in charge.

1 6 & 7 Will. 4, c. 71, s. 71.

merge rent

How merger to be effected in other cases.

Lands and

the same uses.

lieu of tithes, by any deed or declaration under his hand and seal, to be made in such form as the commissioners should approve, and to be confirmed under their seal, to release, assign or otherwise dispose of the same, so that the same might be absolutely merged and extinguished in the freehold and inheritance of the lands on which the same should have been charged. It was afterwards, however, considered desirable considerably to extend this power of merging tithe and tithe rent-charge; and it was accordingly enacted by the statute 1 & 2 Vict. c. 64, that any person or persons who should, either alone or together, be seised of or have the power of acquiring or disposing of the fee simple in possession of any tithes or rent-charge in lieu of tithes, by any deed or declaration under his or their hand and seal, or hands and seals, to be made in such form as the commissioners should approve, and confirmed under their seal, might convey, appoint or otherwise dispose of the same, so that the same might be absolutely merged and extinguished in the freehold and inheritance of the lands out of or on which the same should have been issuing or charged.

Every such deed or declaration is to be valid and effectual for that purpose, although the same may not be executed or made in the manner, or with the formalities, which would have been essential to its validity if the act had not been passed. And such deeds or declarations are by the same act exempted from any stamp duty."

In cases where tithe or tithe rent-charge, and the lands tithes settled to out of which it is payable, are settled to the same uses, the tenant for life in possession is by the act empowered to merge and extinguish them in like manner and form as in the cases last mentioned.°

Copyhold lands.

Charges on

And it is declared that the provisions for the merger of tithe and tithe rent-charge shall extend not only to freehold, but to all lands, though they should be copyhold of inheritance, or for lives, or of any other tenure whatsoever.

By the statute 2 & 3 Vict. c. 62, which has been commerged tithes. monly called the Tithe Amendment Act, it is provided that where any tithe or tithe rent-charge has been or shall be merged, the lands in which such merger shall take effect shall be subject to any charge, incumbrance or liability to which the tithe or tithe-rent charge was subject previous

m As where there is a tenant for life and a tenant in tail in remainder.
n Sects. 1, 2.
• Sect. 3.

P Sect. 4. For the form of a declaration merging tithes or tithe rent-charge when the merger is effected by a separate instrument, and also for the form of a clause to be introduced into an agreement for commutation of tithes for effecting the same purpose, see Appendix, No. IV.

to the merger; and that any such charge, incumbrance or liability shall have priority over any charge or incumbrance existing upon the lands at the time of such merger taking effect, but only to the extent of the value of such tithe or tithe rent-charge; and such lands and the owners of them are made liable to the same remedies for the recovery of any payment, and the performance of any duty in respect of such charge, incumbrance or liability, or of any penalty or damages for non-payment or non-performance thereof respectively, as the tithe or tithe rent-charge, or the owner thereof for the time being, were or was liable to previous to such merger.

All incumbrances, therefore, upon the tithe or tithe rentcharge, which is or may be merged, are not only kept on foot, but directed to be the first charge on the land, so that incumbrances upon tithe and tithe rent-charge which has been merged, appear to be in a better position than before.

It will be a consequence of the provision before mentioned, that the lands are to be charged only to the extent of the value of the tithe or tithe rent-charge merged in them, that where there are incumbrances, the tithes should be commuted for an equivalent rent-charge, before any merger takes place, in order to preserve evidence of what is the extent of such value.

ticular lands.

Every person who is entitled to exercise the above powers May be appor for the merger of tithe and tithe rent-charge, may, with the tioned on parconsent of the commissioners under their hands and seal, and of the person to whom the lands in which such merger shall take effect shall belong, either by the deed or declaration by which the merger is effected, or by any other instrument made as the commissioners shall approve, specially apportion the whole or any part of any such charge, incumbrance or liability, affecting the tithe or rent-charge merged or proposed to be merged upon any part of the lands in which the merger is effected, or upon any other lands of the same person held under the same title, and for the same estate in the same parish; or upon the several closes or portions of such lands; or according to a rate per acre upon lands of different quality, in such manner and proportion, and to the exclusion of such of them, as the person intending to merge the same may by any deed or declaration direct. But no land shall be so exclusively charged, unless its value in the opinion of the commissioners shall be at least three times the value of the amount of the charge, incumbrances, or liability charged thereon, over

Merger in glebe lands.

Where copyholds are subject to an arbitrary fine, &c.

Extent of the

and above all other charges and incumbrances, if any, affecting the same.

All the before-mentioned provisions for the merger of tithe and tithe rent-charge are made to extend to glebe or other land, in all cases where the same, and the tithes or tithe rent-charge thereof, belong to the same person in virtue of his benefice, or of any dignity, office, or appointment held by him; and this will in many cases supersede the necessity of apportioning a contingent, or what we have before called a dormant, rent-charge upon glebe lands.

In the case of copyhold lands subject to an arbitrary fine, a fine equal to two years improved annual value may be imposed. It is provided, therefore, that where tithe or tithe rent-charge is merged in such copyhold lands, its value is to be deducted in estimating the improved annual value of the lands; for this purpose there is to be endorsed on the deed or declaration by which the merger is effected, a certificate under the hands and seal of the commissioners, setting forth the annual value of the tithe or tithe rentcharge so merged; and the production of such deed or instrument, or a duplicate thereof with the certificate endorsed, or of an office copy of such deed or instrument and certificate endorsed thereon, shall be sufficient evidence of the annual value of such merged tithe or tithe rent-charge.

The power therefore of merging tithe or tithe rent-charge power to merge. now extends to all cases where there is unity of possession and unity of title, for an estate for life or any greater estate, or where any two persons jointly have the power of acquiring such estate.

SECTION 9.

Tithe rent. charge to be

deduction for

rates, &c.

Of the Rates and Assessments to which Tithes and Tithe
Rent-charge are liable.

The commissioners are directed to estimate the value of tithes, without making any deduction therefrom on account. valued without of any parliamentary, parochial, county and other rates, charges and assessments, to which tithes are liable; and whenever the tithes shall have been demised or compounded for, on the principle of the rent or composition being paid free from all such rates, charges and assessments, or any part thereof, the commissioners are to regard that circumstance, and to make such addition on account thereof as

See 6 & 7 Will. 4, c. 71, s. 58; 7 Will. 4 & 1 Vict. c. 69, s. 9.
2 & 3 Vict, c. 62, s. 6.
• Sect. 7.

shall be an equivalent. A regard to this circumstance Usual method of was in fact very generally necessary, for in most of the rating tithe formerly. agricultural parishes the valuation of tithes had always proceeded upon the principle of deducting from the amount to be paid the estimated amount of the rate; and this latter, being retained by the occupier, was a compensation to him for the larger amount of rate assessed upon the land held by him, in consequence of no rate being actually paid upon the tithes. This system, although irregular and informal, was probably found convenient, and worked no injustice, so long as the parish was entirely agricultural, and nothing rated but the land. But in parishes partly agricultural and partly manufacturing, or where large houses were subjected to a heavy portion of the rate, the injustice and inconvenience of such a system were obvious; for the land thereby enjoyed a benefit to which it was not properly entitled, there being nothing to compensate the householder and the manufacturer for the increased amount of rate which they had to pay in consequence of the exemption of the tithe. The system nevertheless continued to be very common, up to the time of the commutation of tithes; so much so, that in many instances the liability of tithe to the payment of any rates had been overlooked or forgotten, and many of the parochial agreements first made and sent to the commissioners contained no notice of or provision for the rates, and were consequently returned by them, in order that the sum equivalent to the rates might be added." The rent-charge now payable instead of tithe is to be Rent-charge to subject to all parliamentary, parochial, county, and other be liable to rates, charges and assessments, in like manner as the tithes commuted for such rent-charge have theretofore been subject. And this consequently brings us to the consideration of an extensive subject, it being necessary to inquire fully to what rates and charges, in what manner, and in what proportions, tithes were subject previously to the commutation.

same rates, &c. as tithe formerly.

With respect to the original liability of tithes to temporal Rates and as charges, independently of any charges that might be created sessments to on them by statutes, it is laid down by Lord Coke, "Nullus which tithe was formerly liable. pro decimis quæ sunt spirituales de aliquâ reparatione pontis seu aliquibus oneribus temporalibus onerari debet.” But he adds, that if at that day tithes were in the hands of temporal men, they are by reason of them contributory to temporal charges. The exemption at common law there

6 & 7 Will. 4, c. 71, s. 37.

"See Report of the Tithe Commissioners, dated Nov. 1, 1837. * 6 & 7 Will. 4, c. 71, s. 69.