4. Where a rent-charge is payable to a spiritual incumbent, a portion of land not exceeding twenty acres may be given in lieu of all or part of the rent-charge (0). 5. The rent-charge may at the request of the land-owner (certain forms being observed) be confined to a part of the land, on the whole of which it may have been apportioned; the value of such land being treble the value of the apportioned rent-charge (p). 6. Tithes, or rent-charge in lieu thereof, may in certain instances be merged in land (q). Tithes formerly could not have been so merged. 7. In all leases and agreements made subsequently to the commutation of tithes into rent-charge, the landlord was made. liable to the payment of the rent-charge instead of the occupying tenant (). 8. Small rent-charges might be redeemed by payment of a sum of money not less than twenty-four times the amount of the rent-charge at the time (s). 9. Barren or waste land in a parish where the tithes have been commuted did not, on being brought into cultivation, pay tithes under 2 & 3 Edw. 6, c. 13, s. 5(f), except the extraordinary hop or fruit tithe (u). SECT. 5.-Rent-charge substituted for Tithe. c. 71. 6 & 7 Will. 4, c. 71, after providing that the landowners shall 6 & 7 Will. 4, appoint the valuers of the tithes to be commuted, contains provisions in sections 32 to 55 (which are repealed except as to tithes not commuted). Of these sections, sect. 32 is as follows: "The valuer or valuers so chosen shall apportion the total Valuers to sum agreed to be paid by way of rent-charge instead of tithes, apportion the and the expenses of the apportionment, amongst the several rent-charge. lands in the said parish, according to such principles of apportionment as shall be agreed upon at the meeting at which the valuer or valuers shall be chosen, or if no principles shall be then agreed upon for the guidance of the valuer or valuers, then having regard to the average titheable produce and productive quality of the lands, according to his or their discretion and 6 & 7 Will. 4, c. 71, ss. 29, 62. (p) 6 & 7 Will. 4, c. 71, ss. 58, 72. (9) 6 & 7 Will. 4, c. 71, s. 71, and subsequent acts. (r) 6 & 7 Will. 4, c. 71, ss. 70, 79, 80. (8) 9 & 10 Vict. c. 73, ss. 3--12. Sects. 1 and 2 of this act are reVOL. II. P. pealed, except as to tithes not com- (t) Vide supra, p. 1151. (u) 6 & 7 Will. 4, c. 71, s. 67; Walsh v. Trimmer, L. R. 2 H. L. 208, and see now 49 & 50 Vict. ss. 1-13. 4 G After 1st the commis sioners may ascertain total value of tithes in any parish in which no previous agreement has been made. judgment, but subject in each case to the provisions hereinafter contained, and so that in each case the several lands shall have the full benefit of every modus and composition real, prescriptive, and customary payment, and of every exemption from, or non-liability to, tithes relating to the said lands respectively, and having regard to the several tithes to which the said lands are severally liable." And by sects. 36 and 37: "After the first day of October, 1838, the commissioners shall October, 1838, proceed in manner hereinafter mentioned, at such time and in such order as to them shall seem fit, either by themselves or by some assistant commissioner, to ascertain and award the total sum to be paid by way of rent-charge instead of the tithes of every parish in England and Wales, in which no such agreement binding upon the whole parish as aforesaid shall have been made and confirmed as aforesaid: Provided, nevertheless, that if any proceeding shall be had towards making and executing any such agreement after the commissioners shall have given or caused to be given notice of their intention to act as aforesaid in such parish, the commissioners may refrain from acting upon such notice, if they shall think fit, until the result of such proceeding shall appear. Value of tithes to be calculated upon an average of seven years. Sect. 37. "In every case in which the commissioners shall intend making such award, notice thereof shall be given in such manner as to them shall seem fit; and after the expiration of twenty-one days after such notice shall have been given, the commissioners or some assistant commissioner shall, except in the cases for which provision is hereinafter made, proceed to ascertain the clear average value (after making all just deductions on account of the expenses of collecting, preparing for sale and marketing, where such tithes have been taken in kind,) of the tithes of the said parish, according to the average of seven years preceding Christmas in the year 1835: Provided, that if during the said period of seven years, or any part thereof, the said tithes or any part thereof shall have been compounded for or demised to the owner or occupier of any of the said lands in consideration of any rent or payment instead of tithes, the amount of such composition, or rent or sum agreed to be paid instead of tithes, shall be taken as the clear value of the tithes included in such composition, demise or agreement, during the time for which the same shall have been made; and the commissioners or assistant commissioners shall award the average annual value of the said seven years so ascertained as the sum to be taken for calculating the rent-charge to be paid as a permanent commutation of the said tithes : Provided also, that whenever it shall appear to the commissioners that the party entitled to any such rent or composition shall in any one or more of the said seven years have allowed and made any abatement from the amount of such rent or composition on the ground of the same having in any such year or years been higher than the sum Tithes to be valued without deduction fairly payable by way of composition for the tithe, but not otherwise, then and in every such case such diminished amount, after making such abatements as aforesaid, shall be deemed and taken to have been the sum agreed to be paid for any such year or years: Provided also, that in estimating the value of the said tithes, the commissioners or assistant commissioner shall estimate the same without making any deduction therefrom on account of on account of any parliamentary, parochial, county, and other rates, charges, parochial and and assessments, to which the said tithes are liable; and whenever the said 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 said commissioners or assistant commissioner shall have regard to that circumstance, and shall make such an addition on account thereof as shall be an equivalent" (x). The same rule with respect to rates is directed to be pursued in sections 40, 41, 43. county rates, &c. Sect. 55. "A draft of every apportionment shall be made, and Form of apshall set forth the agreement or award, as the case may be, upon portionment. which such apportionment is founded, and every schedule thereunto annexed, and the said draft or some schedule thereunto annexed, whether made by or under the direction of the valuers. or commissioners or assistant commissioners, shall state the name or description and the true or estimated quantity in statute measure of the several lands to be comprised in the apportionment, and shall set forth the names and description of the several proprietors and occupiers thereof, and whether the said several lands are then cultivated as arable, meadow, or pasture land, or as wood land, common land, or howsoever otherwise, and shall refer, by a number set against the description of such lands, to a map or plan to be drawn on paper or parchment, and the same number shall be marked on the representation of such lands in the said map or plan; and the draft of the apportionment shall also state the amount charged upon the said several lands, and to whom and in what right the same shall be respectively payable" (y). mulation. In the case of Re Appledore Tithe Commutation (z), there were Re Appledore in the parish ancient pasture lands, arable lands, and wood Tithe Comlands; and a modus of 1s. an acre was payable to the vicar for all tithes except those of corn, the wood land being exempt by custom. An award was made and confirmed. In apportioning the award the valuer imposed upon the pasture land a small charge above the 1s. an acre on the ground of the possibility of its being converted into tillage. The commissioners confirmed this apportionment. (z) By sect. 38, a power was given to the commissioners to increase or diminish the sum to be paid for commutation, and a report was ordered to be laid before parlia ment on the mode of exercising this Specific ap- of rent- Alteration of apportion ment. Apportion- desired. On motion for a prohibition the Court of Queen's Bench held that a prohibition would not lie to the commissioners in the circumstances; but that if it did, the commissioners were right. By sect. 58, the landowner may have the rent-charge specifically apportioned upon particular lands under certain conditions. Sect. 69 of the 6 & 7 Will. 4, c. 71, provides that the rentcharge is to be liable to the same rates to which the tithes commuted would have been liable (a). The original apportionment may be altered, when it becomes convenient. The following sections of this Act and the subsequent acts give the machinery. any Sect. 72. "If at any time subsequent to the confirmation of such instrument of apportionment the owner of any lands charged with any such rent-charge shall be desirous that the apportionment thereof shall be altered, it shall be lawful for the commissioners of land tax for the county or place where the said lands are situate, or any three of them, to alter the apportionment in such manner and in such proportion and to the exclusion of such of the lands as the landowner with the consent of two justices of the peace acting for the county, riding, division or other jurisdiction in which the lands are situated, may direct; and such altered apportionment shall be made by an instrument in writing under the hands and seals of the said commissioners of land tax and of the said landowner and justices of the like form and tenor as to the said lands as the original apportionment, and bearing date the day of its execution by the said commissioners of land tax, subject to the provision herein before contained with respect to the value of lands on which any rentcharge may be charged on account of the tithes of any other lands; and every such altered apportionment shall be as valid as if made and confirmed by the tithe commissioners as aforesaid, and shall be taken to be an amendment of the original apportionment; and in every such case two counterparts of the instrument of altered apportionment under the hands and seals of the said commissioners of land tax and justices and landowner, shall be sent, one to the registrar of the diocese, and one to the incumbent and church or chapel-wardens, or other person having the custody of the other copy of the original instrument of apportionment: and one counterpart shall be annexed to the copy of the instrument of apportionment in the custody of the registrar and such other person respectively, and taken to be an amendment thereof; and thenceforward such lands shall be Expenses of, charged only according to such altered apportionment; and all expenses of such alteration shall be borne by the landowner desiring the same." how borne. 5 & 6 Vict. c. 54. Power to alter By 5 & 6 Vict. c. 54, s. 14, "If at any time after the confirmation of any instrument of apportionment it shall appear (a) See now 54 & 55 Vict. c. 8, s. 6; et vide infra, Part V. Chap. VIII. Sect. 3. ments as that the lands charged with one entire rent-charge belong to or apportionhave become vested in several owners, and that any of the between difowners of such lands shall be desirous that the apportionment ferent owners. thereof should be altered, it shall be lawful for the commissioners of land tax for the county or place where the said lands are situated, or any three of them, to appoint, by notice under their hands, a time and place for hearing the parties to such application, and all other parties interested therein; and upon satisfactory proof of such notice having been served on all parties interested full twenty-one days before the day of hearing, to proceed to alter the apportionment in such manner and in such proportion amongst the said lands as to them shall seem just, subject nevertheless to the consent of two justices of the peace, as in the said first-recited act provided; and further, that upon such application being made to the said tithe commissioners, they shall have the same power of making such alteration as by the said first-recited act and by this act is vested in the commissioners of land tax, and that without any such consent of two justices of the peace; provided that no alteration of any apportionment shall be made under the first-recited act or this act whereby any rent-charge shall be subdivided, so that any subdivision thereof shall be less than five shillings" (b). tionment to Sect. 15. "Three counterparts shall be made of every instru- Copy of ment of altered apportionment at the expense of the landowner instrument of desiring the alteration; and two of the said counterparts shall altered apporbe sent as provided by the first-recited act, and the third shall be sent to be sent to or deposited in the office of the tithe commissioners, Tithe Office. and shall be annexed to the instrument of apportionment in the custody of the said commissioners, or the person having the custody of their records and papers." may be reap on other lands. By 23 & 24 Vict. c. 93, s. 11, with the consent of the owner 23 & 24 Vict. or owners of any lands charged with rent-charge under any c. 93. instrument of apportionment, whether payable to one or more Rent-charge owners of rent-charge, and without regard to the mode in which portioned and the same rent-charge is apportioned by the said instrument, the redistributed commissioners may by an altered apportionment re-apportion on the same or and redistribute the same rent-charge over and amongst the said lands or any part thereof, and to the exclusion of any such lands, but no rent-charge shall be charged upon any land to the exclusion of other land of the same owner, unless the land so charged with rent-charge is held for an estate in fee simple or fee tail in possession, or unless the same and the land so excluded are settled to the same uses. Sect. 12. "Where, through the removal or alteration of fences Where fences between land charged with rent-charge under any instrument of removed rentcharge may be apportionment and land upon which no rent-charge is now apportioned charged, or which is tithe-free, it becomes impossible or difficult ou land titheto distinguish the limits of the land so charged with rent-charge with other free jointly (b) See also 3 & 4 Vict. c. 15, ss. 26, 27; and 9 & 10 Vict. c. 73, 58. 13, 14, infra. land. |