STAT. 2 & 3 valid establishment of claims of a modus decimandi (1), or exemption from or disGUL. 4, c. 100. charge 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, or of or to any exemption from or discharge of tithes (2), by composition 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, whether temporal or spiritual, be sustained and be deemed good and valid in law upon evidence showing, in cases of claim of a modus decimandi, the payment or render of such modus, and in cases of claim to exemption or discharge showing the enjoy ment of the land, without payment or render of tithes, money, or other matter in lieu thereof, 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 actual 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 shown 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 it such proof in support of the claim shall be extended to the full period of sixty years next before the time of such demand, in such cases the claim shall be deemed absolute and indefeasible, 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; and where the render of tithes in kind shall be demanded by any archbishop, bishop, dean, prebendary, parson, vicar, master of hospital, or other corporation sole, whether spiritual or temporal, then every such prescription or claim shall be valid and indefeasible upon evidence showing 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 What prescriptions and claims of mo dus decimandi to be valid in law. "But the great object must be to frame a proper period, applicable to varying circumstances, for giving conclusive effect to adverse enjoyment. It has been proposed that the period should go back to the first year of Henry the Eighth, because not many years since a right to tithes was established, and a composition or modus set aside by appeal to a written document which had belonged to Glastonbury Abbey before its dissolution. On the same ground, it might equally well be carried back to the reign of Edward the Second; and if a period were to be fixed so far back as to let in all evidence which would now be available, we must adhere to the reign of Richard the First, and allow things to remain as they are. "Every period of prescription fixed by law supposes that some claims are excluded by it, which would otherwise be established; even the existing limit of sixty years to a writ of right must bar claims which might other wise be established; but we have proposed, that the period of limitation with respect to land should be materially shortened, and we have reason to believe, that this proposal has met with general approbation. There are defects necessarily inherent in all human institutions, and inconveniences will be felt, not only from existing laws, but from any amendment of them. The legislature can only consider what is likely to produce the greatest good with the least evil. "We propose a period of sixty years, and two incumbencies, with three years of a third incumbency, as to exemptions from tithes, and as to moduses, compositions real, and glebe lands. A succession of incumbencies is a necessary ingredient in the proposition, on account of the risk of a particular incumbent being careless or poor, or of there being collusion between the incumbent and the patron, who has land in the parish; but any risk from the character of the individual incumbent, or from collusion between the incumbent and patron for more than two incumbencies in succession, cannot be allowed for without too great a sacrifice of the objects to be attained; and it seems not unreasona ble to presume, that, within the period we propose, there may be an incumbent able and willing to assert the rights, the protection of which is left in his hands." Third Report of Commissioners on the Law of Real Property, 60–62. (1) Modus decimandi: — Vide Driffield (Clerk) v. Orrell, 6 Price, 324. 3 E. & Y. 834. Levesque de Winchester's case, 2 Co. 44. Baudink v. Bushel, 1 Keb. 602. Hall v. Maltby, 6 Price, 255. 3 E. & Y. 928. Perry v. Soam, Cro. Eliz. 139. (2) Discharge of tithes:-Non-payment of tithes will not raise, as against a lay im propriator, a presumption of a grant of tithes to the landowner. Bayley v. Drever, 1 A. & E. 449. Vide Fellowes v. Clay, 4 Q. B. 313. time that two persons in succession shall have held the office or benefice in respect whereof 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 Proviso. 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 before or after such time, or partly before and partly after, as shall with such time be sufficient to make up the full period of sixty years, and 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. What compositions for tithes shall be considered "II. And be it further enacted, that every composition for tithes which hath been made or confirmed by the decree of any court of equity in England in a suit to which the ordinary, patron, and incumbent were parties, and which hath not not since been set aside, abandoned, or departed from, shall be and the same is valid. hereby confirmed and made valid in law; and that no modus, exemption (1), 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. (1) Exemption: -The time limited by Stat. 2 & 3 Gul. 4, c. 100, applies only to the proof of non-payment of tithes, and the legal origin of exemption must, therefore, be proved in the same manner as was required before the passing of that statute. Salkeld v. Johnston, 6 Jurist, 210. Vide Addenda. (2) Action or suit: - Where a bill for tithes was filed against occupiers of lands within the time prescribed by Stat. 2 & 3 Gul. 4. c. 100, and the bill was subsequently, and after the period limited by the act, amended, by making the owner of the lands a party: it was held, that the original and the amended but formed but one record; and that the suit was, therefore, instituted against the owner within the time prescribed by the statute. Thorpe v. Mattingley, 2 Y. & C. 421. la Byron v. Cooper, (8 Jurist, 991,) it appeared, that on August 5th, 1833, a bill for tithes was filed by an ecclesiastical rector, against the occupiers of certain lands, which, in November, 1834, was amended by adding the occupiers of certain other lands, as parties defendant thereto, but no evidence was adduced of any matter excepting the STAT. 2 & 3 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 (2) 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 tene- Time during ments shall have been or shall be held or occupied by any rector, vicar, or other which lands case of the last mentioned defendants; from A modus of 4d. per acre for ancient pasture Where a composition for tithes, made in the year 1711, and duly confirmed by the court of Chancery in 1715, was set aside by a decree of the court of Exchequer in equity, in a suit commenced within the time limited by Stat. 2 & 3 Gul. 4, c. 100, s. 3: it was held, that the rector might bring an action of debt on Stat. 2 & 3 Edw. 6, for not setting out the tithes, before the determination of an appeal to the House of Lords against the decree of the court of Exchequer. Thorpe v. Mattingley, 5 M. & W. 302. The act not available in any suit now commenced, &c. To what cases this act shall not extend. STAT. 2 & 3 person entitled to the tithes thereof, or by any lessee of any such rector, vicar, or GUL. 4, c. 100. other person, or by any person compounding for tithes with any such rector, shall be held by persons entitled to the tithes thereof 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 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 hereinbefore mentioned. to be excluded in the com putation under this act; as also the claim shall be What it shall be sufficient to allege in actions commenced under this act. No presump tion allowed in support of any claim for any less period than mentioned in STAT. 2 & 3 CIII. STAT. 2 & 3 CX. STAT. 2 & 3 1 G. & M. c. 18.. “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 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 hereinbefore mentioned, except only in cases where the right or claim is hereby declared to be absolute and indefeasible. "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." L. STAT. 2 & 3 GULIELMI 4, CAP. CHIL A.D. 1832. "An Act for uniting the Funds of the North and South Charitable Infirmaries of the City of Cork, and for establishing in lieu of such Infirmaries one general Hospital for the said City." LI. STAT. 2 & 3 GULIELMI 4, CAP. CX. A.D. 1832. "An Act for establishing a General Cemetery for the Interment of the Dead in the Neighbourhood of the Metropolis." LII. STAT. 2 & 3 GULIELMI 4, c. 115(1). A.D. 1832. "An Act for the better securing the Charitable Donations and Bequests of His Majesty's Subjects in Great Britain professing the Roman Catholic Religion." "Whereas by an act passed in the first year of the reign of King William and Queen Mary, intituled, 'An Act for exempting His Majesty's Protestant Subjects (1) Where a testator gave two legacies to the respective trustees of certain Roman catholic schools, upon trust for carrying on the good designs of such schools, and the testator died in 1823 it was held, that Stat. 2 & 3 Gul. 4, c. 115, for securing the charitable donations and bequests of his majesty's Roman catholic subjects, was retrospective, and that the trustees of the Roman catholic schools were entitled to the legacies: Lord Chancellor Brougham observing, "He was of opinion that the act was retrospective; and that, as the trustees of the school were not litigant parties in the suit, which was a mere suit for the administration of the testa. tor's estate, the case did not fall within the exception in the third section of the act." Bradshaw v. Tasker, 2 M. & K. 221. dissenting from the Church of England from the Penalties of certain Laws,' and by STAT. 2 & 3 certain subsequent statutes, the schools and places for religious worship(1), educa- GUL. 4, c.115. (1) Religious worship:-It appeared in West v. Shuttleworth, (2 M. & K. 684,) that a testatrix directed several sums to be paid to certain Roman catholic priests and chapels, desiring that they might be paid as soon as possible after her decease, that she might have the benefit of their prayers and masses; and she gave the residue of her property to trustees, upon trust, to pay 101. each to the ministers of certain specified Roman catholic chapels, for the benefit of their prayers for the repose of her soul and that of her deceased husband, and to appropriate the remainder in such way as they might judge best calculated to promote the knowledge of the catholic Christian religion among the poor and ignorant inhabitants of Swale Dale and Wenston Dale: it was held, that the gifts to priests and chapels were void, and that the next of kin was entitled to the benefit of the failure, but that the gift of the residue was valid within Stat. 2 & 3 Gul. 4, c. 115. Sir Charles Pepys observing, "The testatrix in this case, after giving several legacies, some of which were for charitable purposes, as to the residue of her estate and effects, bequeathed the same to Sir Henry Lawson and Simon Scroop, and she appointed John Carr, John Shuttleworth, and John Furniss, her executors. There is then a paper entitled, Omitted in my will, chapels and priests. To the chapel of St. George's Fields, London road, 10.; to St. Patrick's chapel, Sutton street, 10.; to Litchfield chapel, 107.' Several small legacies are then enumerated to several clergymen by name, and then comes th's note: Whatever I have left to priests and chapels, it is my wish and desire the sums may be paid as soon as possible, that I may have the benefit of their prayers and masses.' There is then a letter signed by the testatrix, and addressed to Sir John Lawson and Simon Scroop, which has been proved as testamentary, as follows: Gentlemen, I have herewith sent a duplicate of my will, whereby you will perceive that I have taken the liberty of bequeathing the residue of my property to you, in confidence that you will appropriate the same in the manner most consonant to my wishes, which are as follows: that the sum of 101. each be given to the ministers of the Roman catholic chapels of Greenwich, St. George's in the Fields, Sutton street, Soho square, and York, for the benefit of their prayers for the repose of my soul, and that of my deceased husband, George Townsend, and that the remainder be appropriated by you in such way as you may judge best calculated to promote the knowledge of the catholic Christian religion amongst the poor and ignorant inhabitants of Swale Dale and Wenston Dale, in the county of York.' "These legacies are objected to upon two grounds: first, as to the legacies to the priests and chapels, upon the ground that they are for superstitious uses, and therefore void; and secondly, as to the residue, because it is given for the express purpose of promoting the Roman catholic religion. "I shall first consider the objection to the gift of the residue. The Stat. 2 & 3 Gul. 4, c. 115, puts persons professing the Roman catholic religion upon the same footing with respect to their schools, places for religious worship, education, and charitable purposes, as protestant dissenters; and the case of Bradshaw v. Tasker, (2 M. & K. 221,) decided that the act was retrospective, and that the third section did not exclude the legacies in question in the cause from the operation of the act, because the suit was only for the administration of the estate. In the present case, the bill filed by the next of kin claimed the property, as inapplicable, under the Statute of Mortmain, to any charities, and not because it was given to promote the catholic religion, or to give instruction to those who profess it; and the letter which raises the question as to the residue was not proved until the 15th of January, 1834, so that it cannot be said that the property in question was in litigation, discussion, or dispute, upon the point now contended for, at the time the act passed in 1832. "This act makes it unnecessary to consider what was the state of the law, before it passed, with respect to such dispositions of property in favour of Roman catholics. It is only necessary to inquire what is now the state of the law with respect to similar dis. positions of property in favour of protestant dissenters. The trust is to appropriate the residue in such way as the trustees shall judge best calculated to promote the knowledge of the catholic Christian religion among the poor and ignorant inhabitants of certain places named. In the case of Bradshaw v. Tasker, (Ibid.) the gift was in favour of certain catholic schools, and to be applied towards carrying on the good designs of the said schools. Now, can it be said that to promote the carrying on the good designs of catholic schools differs in principle from promoting the knowledge of the catholic Christian religion amongst the poor and ignorant ? In Attorney-General v. Pearson, (3 Meriv. 409,) Lord Eldon says, that the court will administer a fund given to maintain a society of protestant dissenters promoting no doctrine contrary to law, although such as may be at variance with the doctrine of the established church.' In AttorneyGeneral v. Hickman, (2 Eq. Abr. 193,) a legacy was established, which was given for encouraging such nonconforming preachers to preach God's word in places where the people are not able to allow them a sufficient and suitable maintenance, and for encouraging the bringing up some to the work of the ministry, who are designed to labour in God's vineyard among the dissenters, leaving the particular mode to the trustees. Waller v. Childs, (Ambl. 524,) and the cases which continually occur of funds left to support the chapels and schools of dissenters, proceed upon the same principle, and leave no doubt in my mind of the validity in law of the gift of the residue. "The gifts to priests and chapels remain STAT. 2 & 3 GUL. 4, c. 115. 1700, c. 3. tion, and charitable purposes of protestant dissenters, are exempted from the operation of certain penal and disabling laws to which they were subject previously to the passing of the said recited act of the first year of the reign of King William and Queen Mary; and whereas by certain acts of the parliament of Scotland, and particularly by an act passed in the year one thousand seven hundred, intituled, 'An Act for preventing the Growth of Popery,' various penalties and disabilities were imposed upon persons professing the Roman catholic religion in Scotland; and whereas, notwithstanding the provisions of various acts passed for the relief of his majesty's Roman catholic subjects from disabling laws, doubts have been entertained whether it be lawful for his majesty's subjects professing the Roman catholic religion in Scotland to acquire and hold in real estate the property necessary for religious worship, education, and charitable purposes; and whereas it is expedient to remove all doubts respecting the right of his majesty's subjects professing the Roman catholic religion in England and Wales to acquire and hold property necessary for religious worship, education, and charitable purposes; be it therefore enacted by the king's most excellent majesty, by and with the advice and consent Roman catho- of the lords spiritual and temporal, and commons, in this present parliament assem lics to be sub- bled, and by the authrity of the same, that from and after the passing of this act places of worship. Roman catholic to be considered, and these are not affected "What then is to become of the amount the general illegality of the object they were intended to answer. It has been decided, that where legacies are given to charities, which charities cannot take effect, the object being considered as superstitious, then the duty of appropriating the amount to other charitable purposes devolves upon the crown, as in Cary v. Abbot, (7 Ves. 490;) but in that case and the cases there cited, the object of the gift was clearly charity. In the present case, according to the construction I have put upon these legacies, there was nothing of charity in their object; the inten tion was not to benefit the priests, or to support the chapels, but to secure a supposed benefit to the testatrix herself. Upon what ground, then, can the crown claim? Not by virtue of Stat, 1 Edw. 6, for the case is not within that act; and not upon the ground of the money given being devoted to charity, the mode of applying which devolves upon the crown. Doubts have been entertained, how far it was correct to give to the crown, for the purpose of being applied to charity, funds given for charitable purposes which are illegal, as in the case of Corbyn v. French, (4 Ibid. 418,) and in De Garcin v. Lawson, in the note to that case; but in all such cases charity was the object of the gift; and how can the claim of the crown attach to guts void because superstitious, but of which charity was no part of the object? These gifts are void because illegal; and as they therefore cannot take effect, and as the crown cannot claim either under Stat. 1 Edw. 6, or upon the authorities which give to the crown the right to direct the application of char ty legacies, which cannot be carried into effect according to the directions of the donor, I am of opinion, that the next of kin are entitled." |