Act of Parliament. Non-payment of man. ante, § 78. 2 Rep. 44 b. Hob. 295. answer in that case, with which he had been furnished, the parties there appeared to have had a fee simple; and therefore, that not being a case in which it was necessary to decide the point, it could not be considered of any authority. He could not see any reason why a tenant for life should be excluded from the benefit, any more than a tenant in tail; who, it was agreed, was exempt. There seemed to be no reason why all the component parts of the estate should not be exempt, as they severally came into possession. The Court decreed unanimously, that the tenant for life was exempt. 94. Lands may and are now frequently exempted from the payment of tithes by acts of parliament. Thus in many of the modern inclosure acts, the lands inclosed are for ever freed and discharged from the payment of tithes; and a portion of land is allotted to the spiritual or lay rector, or to the vicar, their successors and heirs, in lieu of them. In other acts of this kind, a corn rent is substituted in the place of tithes. 95. The doctrine that mere non-payment of tithes, though for time immemorial, does not amount to an Tithescannot be pleaded exemption, was established in favour of the church. against a Lay- For in all other cases long acquiescence creates a title; therefore, when lay persons became capable of holding tithes, this principle ought not to have been extended to them, because they are not within the reason of it. But it has been held in several cases, that a general prescription de non decimando can no more be set up against a lay impropriator than against a spiritual person. Bury Corp. v. Evans, 96. Upon a bill for small tithes by a lay impropriCom. R. 643. ator, it was proved by several witnesses that they never knew small tithes paid for. It was contended, that in the case of a lay impropriator the defendant Bunb. 284. More, 97. A bill was brought in the Exchequer by a lay Fanshaw v. impropriator, for tithe of hay and potatoes. The defence was, that no tithe had ever been paid for the 17 Geo. 2. land, nor any modus or composition. It was said for the defendant, that the reason why a layman should not prescribe in non decimando, was founded on principles which did not hold since tithes were lay inheritances. That now, from length of time and possession, there was the same reason to presume a grant from the lay impropriator, in this case, as in cases of other inheritances. That this was not used as a prescription, but as an evidence of right, and to include a presumption of a grant. That before laymen were capable of tithes, an exemption was not sufficient to arise from non-payment of tithes only; but since, it was quite otherwise; and possession in the hands of a layman was as good evidence of a right to tithes, as of any other right. Lord Ch. B. Parker was of opinion, that a layman could not prescribe in non decimando against a lay impropriator, no more than against a spiritual one. It had been said that the statute of Hen. VIII., which made tithes lay inheritances, had altered the case; but as a prescription from that time would not be good, consequently that statute could not create a right by prescription. That this doctrine was not inconvenient, for grants of tithes might be preserved by enrolment; therefore were not likely to be lost, if due care was taken of them. That an act of parlia ment was attempted to remedy this by Sir George Heathcote, about fifteen years before, which miscarried. Baron Carter was of the same opinion; but Baron Reynolds doubted. Baron Clarke said he knew no case which deserved more consideration, for though the authorities against such a prescription were very great, yet the reason of them grew weaker every day. Before the reformation all tithes were ecclesiastical, and a layman could have tithes by way of discharge only, by the grant of patron, parson and ordinary. Since that, there were other ways, both of having tithes, and of being discharged from them. Since tithes had been in the hands of lay impropriators, many persons had purchased discharges for their particular lands; yet if such grants were lost by the common fate of things, those persons must lose the benefit of their purchases; and that must often happen, though they were enrolled, or any other way was taken to preserve them. Very few records of the church were extant; and it would be very hard that time, which strengthens all other rights, should weaken this. It seemed very extraordinary that a layman might prescribe, upon the presumption of a grant, for a portion of tithes in infra, § 101. the soil of another, even against the rector of the parish, and yet could not prescribe for the tithes of his own land in the same way. If therefore he should concur in this opinion, it would be merely from the force of authority; for he thought that the reason of the thing was strong against it. He allowed that, in general, authorities ought to prevail in law; because great inconveniences and confusion would arise from overturning established rules of property. But in this particular case, the inconveniences and confusion of property would be much greater from pursuing those resolutions, than from overturning them. Mr. Joddrell, from whose notes this case was taken by Mr. Gwillim, says he was informed that judgement was given for the plaintiff. Edwards, 98. The plaintiff sued in the Exchequer as lay im- Nagle v. propriator of the parish of L. for tithe of hay and agistment. The defendant insisted, that from tithes of hay never having been paid to the rector, within memory, a conveyance of them to the landholder should be presumed. Lord Ch. B. Macdonald said, the plaintiff having made out to himself a clear title as rector, the defendant insisted on exemption from payment of hay and agistment tithe, on the ground of never having paid these tithes. From non-payment he wished the Court to presume a grant or conveyance of these tithes from the lay impropriator. It was clear that, against an ecclesiastical rector, this defence could never be set up in any shape. Whether a lay impropriator should have the same benefit was at first doubted; but that point seemed at rest. Three successive decisions upon it had fully established that there was no difference between a lay and an ecclesiastical rector. Blencoe, 3 Anstr. 945. 99. In a subsequent case of this kind, the same Petre v. Judge said," It is now established by many cases, too firmly to be disputed, that mere non-payment is not, even among laymen, any answer to the demand of tithes. These determinations are perhaps to be lamented. I should have liked better to have found, in regard to tithes, the same principle of decision which regulates the title to every other lay fee. If non-payment for any length of time forms no presumption of a grant of the tithes; then the length of Rose v. 5 Ves. 186. Birney v. enjoyment, which in all other cases is the best possible title, serves only to weaken the claim of exemption from tithes, as the difficulty of tracing its origin is increased. In the present case it is hardly credible that the plaintiff's family have omitted for above two centuries to exert this right, from mere forbearance or negligence. Some other transaction probably took place between the parties, the memory of which is now lost. But the cases prevent us from deciding upon the ground of such a presumption." 100. Lord Loughborough appears to have been inclined to differ from these cases, and to hold that non-payment alone might be set up as a defence to a claim of tithes by a lay impropriator; but Lord Eldon has decidedly upheld them. And it appears to be 17 Ves. 119. now settled, that a prescription de non decimando can no more be set up against a lay impropriator, than against a spiritual person; as such a prescription must have its origin at a time when the church was incapable of alienating its possessions. But the claim Vide Tit. 31. of a lay impropriator may be repelled by evidence of a grant of the tithes from some preceding lay impropriator. c. 2. Long Possession of a Por tion of Tithes creates a Title. 101. It has been stated, that portions of tithes were severed from rectories before the council of Lateran; and therefore no claim can be made to them, but by persons deriving a title, either from the Crown or some ecclesiastical corporation, who had a power of alienation. It follows, that there is a material difference between a prescription de non decimando, and a claim to a portion of tithes; for, in the latter case, if the claim be supported by evidence of actual pernancy and enjoyment for a long time, a court of equity will not interfere; but leave the parties to their legal remedy. |