Chap. II. tithes of fish or fishing, personal tithes (except tithes of mills), mineral tithes, or any payment instead of tithes within the city of London,1 nor to any permanent rent-charge, or other rent or payment in lieu of tithes calculated according to any rate or proportion in the pound on the rent or value of any houses or lands in any city or town under any custom or private Act of Parliament, nor to any lands or tenements the tithes of which had been, prior to 1836, commuted or extinguished under any Act of Parliament; but sect. 9 of 2 & 3 Vict. c. 62 provides that Easter offerings, mortuaries, surplice fees, or tithes of fish or fishing, or of minerals, may be commuted by parochial agreement before the confirmation of any apportionment after a compulsory award. 5. Sects. 1-9, 17, and 39 of 23 & 24 Vict. c. 93 provide for the conversion of corn rents payable under any local Act in lieu of tithes into a rentcharge upon the same lines as the commutation of tithes; and the statute 48 & 49 Vict. c. 32 provides for the redemption of the rent-charge.2 6. Sects. 91 and 92 of the principal Act, sect. 12 of 1 Payments in lieu of tithes within the city of London under 37 Hen. 6, c. 12, are not really payments in lieu of tithes at all, the socalled "tithes" having, in the absence of express statutory provisions, none of the attributes of tithes at common law; they are not recoverable by distress, and are not rateable to the poor under stat. 43 Eliz. c. 2 (Esdaile v. Assessment Committee of the City of London, 19 Q. B. D. 431; see also Payne v. Esdaile, 13 App. Cas. 613). They do not, therefore, properly fall within the scope of this book. 2 See p. 88. Sect. 1. 7 Will. 4 & 1 Vict. c. 69, and sect. 2 of 1 & 2 Chap. II. Vict. c. 64 provide that no stamp duty shall be charged upon any advertisement, agreement, award, deed, declaration, or power of attorney inserted, made, or used for the purpose of carrying into effect any of the provisions of the Acts, or upon the correspondence of the commissioners. 7. Sect. 94 of the principal Act enacts that no action shall be brought after three calendar months 8. Sect. 95 of the principal Act provides that no pro- Besides the above, the Acts contain certain provisions incidental to the process of commutation, which it is 1 This provision only applies to acts done within the authority given by the Acts (Acland v. Buller, 1 Exch. 837). S. Chap. II. unnecessary to consider in detail at the present day, e. g., provisions for— Sect. 1. The sale of buildings and their sites, rendered un necessary by the commutation (sect. 87 of the principal Act, and sect. 15 of 2 & 3 Vict. c. 62) ; The surrender by any lessee of tithes of his lease (sect. 87 of the principal Act); The fixing of a time for the commencement of the rent-charge, and provisions incidental thereto (7 Will. 4 & 1 Vict. c. 69, s. 11; 2 & 3 Vict. c. 62, s. 10; 3 & 4 Vict. c. 15, ss. 1-13, and 5 & 6 Vict. c. 54, ss. 3, 12); The exemption from rent-charge of gardens and lawns of small extent, the tithes of which have not been valued (3 & 4 Vict. c. 69, s. 25); And enabling the commissioners, where rent-charge has been apportioned on certain tenements of small extent, from which no tithes had been taken for seven years prior to 1836, to cause a new apportionment to be made exempting such tenements (3 & 4 Vict. c. 15, ss. 26, 27). The Acts also contain provisions enabling the commissioners to define and facilitate the exchange of glebe lands, or lands held by any spiritual person in right of his benefice, or any annual payment or augmentation so belonging to him (5 & 6 Vict. c. 54, s. 5; 9 & 10 Vict. c. 73, s. 22; 23 & 24 Vict. c. 93, s. 41; and 41 & 42 Vict. c. 42, s. 7); the consideration of these, however, would not properly fall within the scope of the present book. Sect. 1. Having now considered certain preliminary matters, Chap. II. we come to the process of commutation itself. The word "commutation" is not properly applicable to the whole process, though the Acts are entitled "Commutation Acts." The process consists of two distinct operations, first, the "commutation," or ascertainment of the value of the whole of the tithes payable in the parish, and the substitution therefor of an equivalent total sum payable annually by way of rent-charge by the whole parish; and secondly, the "apportionment" of this sum, when ascertained, among the various titheable lands in the parish. It is proposed, therefore, in the remaining sections of this Chapter to give, first, an outline of commutation, properly so called, in ordinary cases; secondly, an outline of apportionment in similar cases; thirdly, to deal separately with certain exceptional cases; and, fourthly, with the expenses of commutation and apportionment. SECT. II.-Commutation in Ordinary Cases. Commutation might be effected in two ways— 1. By parochial agreement, or 2. Compulsorily by the award of the com- 1. A parochial agreement might be made at a parochial meeting, specially convened with certain for Sect. 2. Chap. II. malities (see sect. 17 of the principal Act), by any land or tithe owners interested as to one quarter of the lands or tithes in the parish. At any such meeting, or adjourned meeting (sect. 20), owners of at least two-thirds of the titheable lands, and of at least two-thirds of the great and two-thirds of the small tithes in the parish,' being present, might agree for the payment of an annual sum by way of rent-charge,2 variable, as is hereafter3 explained, with the price of corn, instead of the whole, or of the great, or of the small tithes of the parish. By sect. 18 of the principal Act, power was given to parochial meetings to make a provisional agreement, which, upon being executed by the required majority of land and tithe owners within six months, became as binding as an agreement duly made at the meeting, and the same is provided in sect. 25 as to agreements pending at the time of the passing of the Act. In case of any suit pending as to the right to tithes, or any question arising as to the existence of any modus, composition real, or prescriptive or customary payment, or any claim to exemption from, or nonliability to, tithes, or any question touching the situation or boundary of any lands, or any difference 1 Sect. 19 of the principal Act provides how the proportionate interest of any land or tithe owner is to be estimated. 2 It would seem that in settling the amount of rent-charge the contingent value of tithes, in cases where they are suspended or contingent, in the case, e.g., of glebe or Crown lands, should be added to the value of the other tithes of the parish. 3 See p. 42. 4 As to the powers conferred on the commissioners to settle boundaries, see pp. 21, 22. |