TIME OF PRE-
SCRIPTION.

"We are of opinion, however, that it is impossible to construe the act of Parliament as intending that the periods of years therein mentioned should 2 & 3 W.4, c.71. terminate at a different time from that fixed in express and positive terms. If the words of the statute were capable of being modified, so as to avoid an inconvenience plainly and manifestly arising from a strict construction of them, we ought to do so; but here the words are precise and unambiguous, and the mischief suggested is perhaps rather apparent than real; and most cases of grants by prescription, before the act passed, were of the same nature, and the validity of rights gained by them depended much upon the mode of enjoyment until that action was brought in which they came in question: and with respect to the form of the plea, which is at first sight somewhat incongruous, it is to be observed that there is something of the same kind of incongruity, though by no means to the same extent, in the usual mode of pleading a prescription, which states that some person seised in fee, from time whereof the memory of man is not to the contrary, until and at the time when &c., and from thence hitherto, hath had and enjoyed, and hath been used and accustomed to have and enjoy, and still of right ought to have and enjoy, a particular easement; and then justifies the act done by reason of that enjoyment; which enjoyment is both before and after the time of such act. It appears to us that the statute in question intended to confer, after the periods of enjoyment therein mentioned, a right from their first commencement, and to legalize every act done in the exercise of the right during their continuance; and we think the pleas are, for these reasons, sufficient in point of law.

"The next question is, whether the replications are good; and we are clearly of opinion that they are not.

"The enjoyment of the right during forty years alleged in the pleas being admitted, the replications, which state only an existing tenancy for life, are no answer; for the time of a tenancy for life in a person who might otherwise be capable of resisting the claim, though excluded by the 7th section from the computation of the shorter period of twenty years absolutely, is, by the 8th section, excluded from the computation of the longer period of forty years conditionally only; that is, provided the reversioner expectant on the determination of the term for life shall, within three years (that is, probably, before the end of three years) after such determination, resist the right; and it does not appear that the plaintiff is entitled to the reversion expectant on that lease, though it is averred that he has a reversion expectant on the determination of the interest of the tenant in possession. The tenancy for the life of Lord Dinorben, the cestui que vie, is therefore not to be excluded, on these pleadings, from the period of forty years; and, such period being complete, the defendant is entitled to an indefeasible right to the easement claimed.

"Another objection was urged to the mode of stating the feoffment in the replication, upon which it is not necessary to enter.

"We therefore think that the defendant is entitled to judgment; but, on account of the difficulty in construing the new act, and the importance of the the plaintiff may amend on payment of costs.

case,

"Judgment accordingly."

IV. The periods of enjoyment mentioned in the act are such as are next before the commencement of an action. Jones v. Price, 3 Bing. N. C. 52. And see the judgment in Wright v. Williams, suprà.

V. Under a general traverse of an allegation of a right of way, enjoyed as TIME OF PREof right for forty years, evidence is admissible of an agreement within that period to pay a sum of money for permission to use the way.

6 Nev. & Man. 230.

SCRIPTION.

Tickle v. Brown, 2 & 3W.4, c.71.

Semble, that evidence of an annual payment for such permission, within the forty years, would be admissible in support of an allegation of an interruption for a year, and acquiescence in the interruption; and that a special allegation of a deed or agreement is required, under section 5, in those cases only where the deed or agreement precedes the forty or twenty years, and that an agreement, made within the particular period of forty or twenty years, may be given in evidence under the general traverse, whether such agreement be in writing or verbal.

"It seems," said the Court, "that the enjoyment as of right,' must mean an enjoyment had not secretly or by stealth, or by tacit sufferance, or by permission asked from time to time, on each occasion, or even on many occasions of using it, but an enjoyment had openly, notoriously, without particular leave at the time, by a person claiming to use it, without danger of being treated as a trespasser, as a matter of right, whether strictly legal, by prescription and adverse user, or by deed conferring the right; or though not strictly legal, yet lawful to the extent of excusing a trespass, as by a consent or agreement in writing not under seal in case of a plea of enjoyment for 40 years, or by such writing, or by parol consent or agreement, contract, or licence, in case of a plea of enjoyment for 20 years."

And under a replication denying that the defendant had used the way for forty years, as of right and without interruption, the plaintiff is at liberty to shew the character and description of the user and enjoyment of the way during any part of the time; as, that it was used by stealth, or in the absence of the occupier of the close and without his knowledge, or that it was merely a precarious enjoyment by leave and licence, or any other circumstances which negative that it was an user or enjoyment under a claim of right, the words of the fifth section, "not inconsistent with the simple fact of enjoyment," being referable to the fact of enjoyment as before stated in the act, viz., an enjoyment claimed and exercised us of right. Beasley v. Clarke, 3 Scott, 258.

2 & 3 WILL. IV. c. 100.

An Act for shortening the Time required in Claims of Modus Deci- MODUS DECImandi, or Exemption from or discharge of Tithes.

[9th August, 1832.]

MANDI AND EXEMPTION FROM TITHES.

WHEREAS the expence and inconvenience of suits instituted for 2 & 3 Will. 4,

c. 100.

the recovery of tithes may and ought to be prevented, by shortening the time required for the valid establishment of claims of a modus decimandi, or exemption from or discharge of tithes; be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that all prescriptions and claims of or for any modus decimandi, scriptions and

What pre

MODUS DECI

MANDI AND
EXEMPTION

FROM TITHES.

2 & 3 Will. 4, c. 100.

claims of

modus deci

mandi to be valid in law.

Proviso.

or of or to any exemption from or discharge of tithes, by composi-
tion real or otherwise, shall, in cases where the render of tithes in
kind shall be hereafter demanded by our said lord the King, his heirs
or successors, or by any Duke of Cornwall, or by any lay person,
not being a corporation sole, or by any body corporate of many, whe-
ther temporal or spiritual, be sustained and be deemed good and
valid in law upon evidence shewing, in cases of claim of a modus de-
cimandi, the payment or render of such modus, and in cases of claim
to exemption or discharge shewing the enjoyment of the land, with-
out payment or render of tithes, money, or other matter in lieu there-
of, for the full period of thirty years next before the time of such
demand, unless, in the case of claim of a modus decimandi, the ac-
tual payment or render of tithes in kind, or of money or other thing
differing in amount, quality, or quantity from the modus claimed, or,
in case of claim to exemption or discharge, the render or payment
of tithes, or of money or other matter in lieu thereof, shall be shewn
to have taken place at some time prior to such thirty years, or it
shall be proved that such payment or render of modus was made or
enjoyment 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 be-
fore the time of such demand, in such cases the claim shall be deemed
absolute and indefeasible, unless it shall be proved that such pay-
ment or render of modus was made or enjoyment had by some con-
sent or agreement expressly made or given for that purpose by deed
or writing; and where the render of tithes in kind shall be demand-
ed by any archbishop, bishop, dean, prebendary, parson, vicar, mas-
ter of hospital, or other corporation sole whether spiritual or tempo-
ral, then every such prescription or claim shall be valid and indefea-
sible upon evidence shewing such payment or render of modus made
or enjoyment had, as is herein-before mentioned, applicable to the
nature of the claim, for and during the whole time that two persons
in succession shall have held the office or benefice in respect where-
of 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 always, 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 payment or render of modus made
or enjoyment had (as the case may be), not only during the whole of
such time, but also during such further number of years, either be-
fore or after such time, or partly before and partly after, as shall

MANDI AND EXEMPTION FROM TITHES. 2 & 3 Will. 4,

c. 100.

with such time be sufficient to make up the full period of sixty years MODUS DECIand 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 payment or render of modus was made or enjoyment had by some consent or agreement expressly made or given for that purpose by deed or writing. II. And be it further enacted, that every composition for tithes What composiwhich hath been made or confirmed by the decree of any court of equity in England in a suit to which the ordinary, patron, and incum- dered valid. bent were parties, and which hath not since been set aside, abandoned, or departed from, shall be and the same is hereby confirmed and made valid in law; and that no modus, exemption, or discharge shall be deemed to be within the provisions of this act, unless such modus, exemption, or discharge shall be proved to have existed and been acted upon at the time of or within one year next before the passing of this act.

III. Provided always, that this act shall not be prejudicial or available to or for any plaintiff or defendant in any suit or action relative to any of the matters before mentioned, now commenced, or which may be hereafter commenced, during the present session of parliament, or within one year from the end thereof.

IV. Provided also, and be it further enacted, that this act shall not extend or be applicable to any case where the tithes of any lands, tenements, or hereditaments shall have been demised by deed for any term of life or number of years, or where any composition for tithes shall have been made by deed or writing, by the person or body corporate entitled to such tithes, with the owner or occupier of the land, for any such term or number of years, and such demise or composition shall be subsisting at the time of the passing of this act, and where any action or suit shall be instituted for the recovery or enforcing the payment of tithes in kind within three years next after the expiration, surrender, or other determination of such demise or composition.

V. Provided also, and be it further enacted, that where any lands or tenements shall have been or shall be held or occupied by any rector, vicar, or other person entitied to the tithes thereof, or by any lessee of any such rector, vicar, or other person, or by any person compounding for tithes with any such rector, vicar, or other person, or by any tenant of any such rector, vicar, or other person, or of any such lessee or compounder, whereby the right to the tithes of such lands or tenements may have been or may be during any time in

tions for tithes shall be consi

The act not

available in any suit now commenced,

&c.

To what
cases this act

shall not
extend.

Time during shall be held by persons the tithes thereof to be

which lands

entitled to

excluded in

the computation under this

act;

MANDI AND EXEMPTION FROM TITHES. 2 & 3 Will. 4, c. 100.

MODUS DECI- the occupier thereof, or in the person entitled to the rent thereof, the whole of every such time and times shall be excluded in the Computation of the several periods of time herein-before mentioned. VI. Provided also, that the time during which any person otherwise capable of resisting any claim to any of the matters before mentioned shall have been or shall be an infant, idiot, non compos mentis, feme covert, or lay tenant for life, or during which any action or person capable suit shall have been pending, and which shall have been diligently prosecuted, until abated by the death of any party or parties thereto, shall be excluded in the computation of the periods herein-before mentioned, except only in cases where the right or claim is hereby declared to be absolute and indefeasible.

as also the time during which any

of resisting any claim shall be an infant, &c.

What it shall be sufficient

to allege in actions commenced under this act.

No presumption allowed in support of any claim for any less period than

mentioned in this act.

Act to extend to England only.

VII. And be it further enacted, that in all actions and suits to be commenced after this act shall take effect it shall be sufficient to allege that the modus or exemption or discharge claimed was actually exercised and enjoyed for such of the periods mentioned in this act as may be applicable to the case; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, deed, or writing herein mentioned, or any other matter of fact or of law not inconsistent with the simple fact of the exercise and enjoyment of the matter claimed, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of the matter claimed.

VIII. And be it further enacted, that in the several cases mentioned in and provided for by this act, no presumption shall be allowed or made in favour or support of any claim upon proof of the exercise or enjoyment of the right or matter claimed for any less period of time or number of years than for such period or number mentioned in this act as may be applicable to the case and to the nature of the claim.

IX. Provided also, and be it further enacted, that this act shall not extend to Scotland or Ireland.

Estates sold tithe free.

ANNOTATIONS.

I. When an estate is sold tithe free, the vendor must either shew a title in himself to the tithes, originating in an appropriation, and a grant from the crown, or establish a clear case of exemption arising from circumstances capable of proof, and which had, or might have had, a legal commencement. The foregoing statute will very much facilitate the latter object. If the vendor fail to prove the estate to be tithe free, this is generally considered to be a