A

in one township made no difference. Evidence of a right to all kinds of tithes, in a lay impropriator, up to a given time, and of the receipt of the corn tithe since that time by another party, is evidence from which a jury may, if they think fit, infer a grant of all the tithes by the first-mentioned impropriator to such latter party; and, therefore the latter, in support of a claim for hay tithe, may give documentary or other evidence of hay tithe having been taken by the presumed grantor. A terrier cannot be received in evidence, unless it comes from the proper repositoryP, that is, the registry of the bishop of the diocese; but if the original cannot be found there, it seems that a copy from the parish chest would be admissible. An ancient statement concerning the payment of tithes of a parish by a modus, signed by the rector for the time being, was holden to be evidence against a succeeding rector as an admission by his predecessor, although it was found among the title deeds of a land owner in the parish, and although a terrier was produced from the bishop's registry, which was silent as to the modus.

The word tithes in ancient documents does not necessarily import tithes in kind; but may mean, according to circumstances, either tithes in kind or a money-payment in lieu thereof.

Verdict.

If the verdict be given for the plaintifft, it is incumbent on the jury to find how much of the debt demanded by the declaration is due to the plaintiff, which is to be done by trebling the value of the tithe subtracted. The plaintiff shall recover according to the verdict"; hence, where, in the statement of the treble value of the tithe, there was error in the calculation, and the plaintiff demanded less than he was entitled to on motion in arrest of judgment after verdict, an exception was taken on the ground that the plaintiff, having demanded less than was due, ought to have acknowledged satisfaction for the residue; but the court over-ruled the objection, observing that the demand in this case was not for any sum certain, as in an action grounded on a specialty, but only for so much as should be given by the jury, the plaintiff

o Bayley v. Drever, 1 Ad. & Ell. 449;

3 Nev. & M. 885. S. C.

p Atkins v. Hatton, Gwill. 140. q S. C.

r Maddison v. Nuttall, 6 Bingh. 226.

s Beck v. Bree, 1 Cr. & J. 246.

t Degge, 6th ed. 404.

u Pemberton v. Shelton, Cro. Jac. 498. 2 Rol. R. 54. S. C.

VOL. II.

2 T

being entitled to recover, not according to his demand, but according to the verdict. Where it was found, by a special verdict, that the abbot of A. was seised in fee of certain land, and that he and his predecessors held the land discharged of tithe, and that he had granted the land to All Souls College; it was holden, that the prescription was personal to the abbot, and did not run with the land, and that it could not be intended to be a discharge by a real composition, it not being so pleaded, nor found by the jury to be so. An action on this statute, being brought by the party grieved for the purpose of trying a right, and being more beneficial to the defendant, than to be carried into the spiritual court, is not considered as a penal action brought by a common informer. Consequently a new trial will be granted, where it is clear that the verdict has been given for the defendant against the weight of evidencet; although, in penal actions, the courts will not permit a verdict for the defendant to be disturbed on this ground".

Costs.

As to the costs, see the remarks on the second section, note, p. 1318, and post, under tit. Judgment, and stat. 3 & 4 W. 4. c. 42. s. 32. ante, p. 41.

Judgment.

This being an action for the recovery of the treble value of the tithes, in a case where the single value was not recoverable at common law, did not fall within the stat. of Gloucester (15); the plaintiff, therefore, was not entitled to recover costs under that statute, consequently the judgment formerly was only for the debt* found by the jury; and if the

r Bolls v. Atkinson, 1 Lev. 185.
t Holloway v. Hewitt, Trin. 13 G. 3.
10 MSS. Serjt. Hill, p. 339. Lord
Selsea v. Powell, 6 Taunt. 297. S. P.

u Brook q. t. v. Middleton, 10 East, 268.

x Co. Ent. 162. a. 2d ed.

(15) "Where a statute gives damages by creation, there the plaintiff shall recover no costs; the reason is, because damages being given out of course, and where the common law does not give them, and the statute being therefore introductive of a new law, the plaintiff shall recover what the statute appoints him to recover, and no more." Arg. Hardr. 152.

jury upon the trial had given costs and damages, it was incumbent on the plaintiff to enter a remittitur, and take judgment for the debt only; but an alteration has been made in this respect by stat. 8 and 9 W. 3. c. 11, which see, ante, p 1318. Îf judgment be for the plaintiff by nil dicit, non sum informatus, or upon demurrer, the judgment may be entered for the whole debt demanded by the declaration. So if the issue be on a collateral mattera, as on the custom of tithing or discharge by statute, which is found against the defendant, and the defendant hath not taken the value by protestation, he shall pay the value expressed by the plaintiff in his declaration; for by the collateral matter pleaded in bar, the declaration is confessed in the whole. If the action be brought against two or more defendants, and a verdict is given against one or two only of the defendants, plaintiff is entitled to judgment against those, although there be a verdict for the other defendants. It is expressly provided, that the statute of jeofails, 16 and 17 Car. 2. c. 8., shall extend to this action.

III. Of the Stat. 6 and 7 W.4. c. 71. for the Commutation of Tithes in England and Wales, amended by Stat. 7 W. 4. and 1 Vict. c. 69.

THE object of the statute, as it may be gathered from the preamble, is to amend the laws relating to tithes in England and Wales, and to provide the means for an adequate compensation for tithes, and for the commutation thereof. The plan pursued for effecting this object, is to convert all the uncommuted tithes into a corn-rent charge, payable in money, according to the value of fixed quantities of wheat, barley, and oats, as ascertained from year to year by the average price for the seven years ending at the preceding Christmas.

Sections 1 to 11 contain regulations relating to the appointment and general power of commissioners and assistant commissioners for the execution of the act; and, by s. 2, all agreements and awards, and other instruments, or copies thereof, under their seal, are to be received in evidence without further proof;

y See Dagg v. Penkevon, Cro. Jac. 30. b Bowles v. Broadhead, Aleyn, 88. where this mode was adopted. c Styles, 317, 318. See also ante, un. der Verdict, p. 1335.

z Degge, 404.

a Costerdam's case, cited in Yelv. 127.

1

and no agreement or award is to be of any force, unless sealed
or stamped as the act directs. Sections 12 to 16 relate to the
interpretation of the act. Sections 17 to 31 provide for volun-
tary agreements for a rent-charge in lieu of tithes between
land owners and tithe owners. The act treats the commuta-
tion as consisting of two separate processes: 1st, the deter-
mination of the total sum to be paid for the tithes of any
parish; 2dly, the apportionment of the total sum among the
different lands on which it is to be charged. The first of these
processes may be effected, first, voluntarily; 2dly, after the
1st of October, 1838, compulsorily. Sections 32 to 35, re-
gulate the mode in which the second of these processes is to
be carried into effect. Sections 36 to 52 provide for the com-
mutation on the supposition that no voluntary agreement has
been made. By the 49th section, nothing in this act con-
tained shall revive any right to tithes, which now is, or here-
after shall be, barred by any law in force for shortening the
time required in claims of modus decimandi, or exemption from
or discharge from tithes, or for the limitation of actions and
suits relating to real property. Sections 53 to 55, and 58 to
68, contain further provisions applicable to apportionment.
The 56th and 57th sections, which, according to Mr. White,
appear to have been misplaced, and also the 67th section, re-
late to the conversion of the money rent-charge into a corn
rent-charge. By s. 67, lands are to be discharged from tithes
from the 1st of January next following the confirmation of
the apportionment, and the rent-charge paid in lieu thereof
on the 1st of July and the 1st of January in every year; and
by 7 W. 4. and i Vict. c. 69. s. 10, it is enacted, that, with
the first payment of rent-charge under any agreement, shall
also be paid any sum which shall be agreed to be paid in con-
sideration of the time (if any) which may intervene between
the termination of any previous agreement or composition,
and the time at which, by the agreement for commutation,
the lands shall be discharged. As compositions are usually
payable at Michaelmas, incumbents of parishes, where such
exist, should be careful to provide, by express agreement, for
the intervening quarter between Michaelmas and the 1st of
January, on which the land is to be discharged under the
commutation. By stat. 6 and 7 W. 4. c. 71. ss. 69 to 71,
the rent-charge is made liable to parochial and county rates,
and subject to the same incumbrances and incidents as tithe
before the act; these rates and charges were, by the 70th
section, to be assessed on the occupier, who was entitled to

d See a correct Analysis of this Act, by J. M. White, p. xvi.

deduct the amount thereof from his rent; but now, by stat. 7 W. 4. and 1 Vict. c. 69. s. 8, the assessment may at once be made on the owner of the rent-charge. Section 72 of the stat. 6 and 7 W. 4. c. 71, contains a provision for future alteration of the apportionment; by virtue of this provision, any land owner may discharge such portion as he may wish to sell, provided the residue of his land left charged with the rentcharge be of the value required by s. 58., that is, three times the value of the rent-charge. By ss. 79 and 80., if any tenant of lands at rack rent dissent from paying the rent-charge, the landlord may take the tithes during the tenancy; and any tenant paying the rent-charge, is to be allowed the same in account with his landlord. By s. 81, when the rent-charge is in arrear for 21 days, the person entitled thereto may distrain, after 10 days' notice; but only two years' arrears can be recovered and by ss. 82, 83, if rent-charge be in arrear for 40 days, and there is no sufficient distress, a judge may order a writ to issue to sheriff to summon a jury to inquire and assess arrears; on the return of the inquisition, a writ of habere facias possessionem may issue, under which the land may be held by the owner of the rent-charge, till the arrears and costs, including the costs of cultivation, be satisfied; but not more than two years' arrears can be recovered. Section 84, provides for the case of Quakers. By s. 86, the provisions of stat. 4 and 5 W. 4. c. 22, and 11 G. 2. c. 19, (for which see ante, p. 611, 12,) shall extend to all rent-charges payable under this act. By s. 89, this act shall not affect any right to any tithes which shall have become due before the commutation. By s. 90, this act is not to extend to any of the following matters, except by special agreement, 1. Easter offerings, mortuaries, and surplice fees. 2. Tithes of fish or of fishing. 3. Personal tithes, except mills. 4. Mineral tithes. 5. Tithes in the city of London. 6. Permanent rent-charge or payment in lieu of tithes on houses or lands in any city or town, under any custom or private act. 7. Lands, of which the tithes are already perpetually commuted or extinguished by act of parliament.