Justices Patteson and Coleridge with the Chief Justice and Mr. Justice Cresswell, I directed that the same case should be submitted to the Court of Exchequer, and upon this point the Chief Baron and Barons Parke, Alderson and Platt, have certified their concurrence with the opinion of Justices Erle and Coltman. The result, therefore is, that of the twelve Judges who have given opinions upon this point, eight differ from that of Vice Chancellor Wigram, and four concur with him.

It is now my duty to come to the best conclusion I can upon a question of which the difficulty is best proved by the diversity of opinion amongst the Judges. The question must depend upon the construction of the act, but it is not only a legitimate but a proper course first to consider the position at the time it passed of the subject-matter upon which it was intended to operate. This subject-matter is by the act described to be "Prescriptions and claims of or for any modus decimandi, or of or to any exemption from or discharge of tithes by composition real or otherwise," treating the modus and the discharge as one and the same for the purposes of the act, and providing the same remedy for each.

This I think an

important consideration, because some of the learned Judges who support the plain. tiff's right to the tithes found their arguments very much upon the supposed distinction between rules of law as applicable to moduses and discharges; and, no doubt, different rules have been applied to compositions real, the reason for which is not very apparent, but the foundation of the right of the occupier is the same in all. As in for mer times it was competent for the parties interested to agree to the payment of a modus in lieu of tithes in kind, proof of immemorial payment of such modus and non-payment of tithes in kind was a sufficient defence against the claim for tithes, upon the ground that the prescription is held to be proof of a grant or arrangement about property which the parties were competent to enter into; but the immemorial payment was only evidence of the agreement; that being the foundation of the right claimed. In the ordinary case of a discharge claimed upon the ground of the lands having belonged to one of the greater monasteries dissolved by Henry VIII., the

principle will be found to be the same. Those monasteries were capable of holding their lands discharged from tithes-they were not necessarily so discharged, but the establishment was competent to hold them discharged. When, therefore, it appeared that no tithes had ever been paid by them a discharge was presumed, as it might have had a legal foundation. Here, again, the nonrender of tithes was only available as evidence of the supposed arrangement of the religious house upon which the discharge at the present time rested. I am considering the case as if the religious houses had continued to this time, and were in possession of the land, the statute Henry VIII. having only given to the lay proprietors the same right which the religious houses had before enjoyed. In both these cases immemorial usage was necessary to establish the right claimed, the foundation of which could not be proved; but in fact such usage was in ordinary cases assumed upon proof of comparatively modern practice; but in both it was competent for the party claiming the tithe to meet such presumptive proof for the purpose of shewing that the conclusions to which it tended could not be well founded, and that in fact there was not a legal foundation of the discharge claimed. In the case of a discharge by composition real, these principles were not strictly followed, nor indeed the rules which regulate all other cases of prescription. Up to the disabling statutes in the reign of Elizabeth, it was competent for the tithe-owner and the landowner to enter into a composition real, with the concurrence of other requisite parties; it might therefore have been expected that the enjoyment of the land without any render of tithes from time immemorial would be received as evidence of an arrangement between parties who were at the time competent to enter into it; but such was not the course adopted, but the party setting up the composition real was required to produce the deed by which it was effected, or some evidence of its having been executed. This Mr. Justice Erle properly describes as an anomaly, and it was so manifestly unjust that the Courts at last only required slight evidence of its having existed, specifically referring to the fact. In this case the difficulty was therefore greater than in the former; for not only

had the occupier to prove the immemorial non-render of the tithes, but also to give some evidence of the legal origin of his claim of discharge, and as in other cases, to meet any evidence his adversary might produce tending to negative the foundation of his title.

Such was the state of the law and such the difficulty which persons holding land legally discharged from the payment of tithe in kind had to contend with when compelled to defend such legal right, when Lord Tenterden's Act passed; by the 1st section of which it is enacted, that all prescriptions and claims of or for any modus decimandi, or of or to any exemption from or discharge of tithes by composition real or otherwise, in cases of claims by laymen other than corporations sole, shall be sustained and be deemed good and valid in law upon evidence shewing in cases of claim of a modus decimandi the payment or render of such modus; and in cases of claim to exemption or discharge, shewing the enjoyment of the lands 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 it should be proved that such render or payment had been made prior to such thirty years; and if such proof in support of the claim should be extended to the full period of sixty years next before the time of such demand, in such cases the claim was to be deemed absolute and indefeasible, unless in either case such non-render and non-payment should have been under a consent or agreement in writing; and where the demand was made by any corporation sole, every such prescription or claim was to be valid and indefeasible upon evidence shewing the payment of the modus or the enjoyment of the discharge for the periods therein specified. Such being the enactment, the defendant has set up a prescription and claim to an exemption from, and discharge of, tithes of certain matters and things, and he has proved the enjoyment of his land without payment or render of such tithes, or of money or other matter in lieu thereof, for the full period required by the act; upon which proof the act declares that such prescription and claim shall be sustained and held good and valid in law and shall be absolute and indefeasible; but the decree NEW SERIES, XVIII.-CHANC.

of the Vice Chancellor has held such proof to be of no value or validity, and has decreed the payment of tithes notwithstanding such proof. I cannot find any ambiguity in this enactment, or any flexible expression capable of different meanings. If, therefore, other parts of the act led to the belief that such was not the real intention of the act, I do not see how it could be possible to controul so positive an enactment; but I am of opinion that all the other parts of the act confirm the natural meaning of the words, and that the construction put upon it by the decree would deprive it of nearly all its value, and render it all but inoperative.

The 7th section enacts, that in all suits and actions it shall be sufficient to allege that the modus or exemption or discharge claimed was actually exercised and enjoyed for the period mentioned; and if the other party shall intend to rely upon any 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. The act says, that the allegation of enjoyment of the right claimed during the period prescribed shall be a sufficient answer to the action or suit. Can it then be contended that such allegation affords no defence; but that in order to meet the demand much more must be alleged and proved; namely, the facts, necessary before the act, to shew the legal origin of the exemption? That nothing more need be alleged than the simple fact of the exercise and enjoyment of the discharge claimed is positively enacted by this 7th section; was it then intended that the defendant should go into evidence and prove what he was not required to plead or to put in issue? If the plaintiff had anything to allege why the defence should not prevail, he was required to allege it specially, and was not to be at liberty to give any evidence of it, on any general traverse or denial of the matter claimed. If the defendant was bound to prove more than the enjoyment pleaded, the plaintiff, not having specially alleged any matter, is prohibited from going into any evidence to meet such further proof; shewing that without any special allegation the whole contest between the parties was to be confined to the simple fact of the exercise and enjoyment of the right claimed. If then nothing need be pleaded but the exercise

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and enjoyment of the discharge claimed for the stipulated period, and such exercise and enjoyment is by the act declared to make the right valid, absolute, and indefeasible, it is not easy to conceive any reason why the defendant, having so pleaded and proved all that the act requires, nothing being alleged to the contrary by the plaintiff, is not to have the protection of the act; but so some of the most able Judges at law and in equity have thought, and their opinions being entitled to the greatest respect, the grounds upon which they are founded must be carefully examined.

Vice Chancellor Wigram rests his opinion principally upon the preamble of the act, which recites that the object was to shorten the time required for the valid establishment of claims of modus or exemption; and, considering that before the act several things were required besides length of time, such as in the two principal grounds ofexemption, possession by one of the greater monasteries, and in the case of a composition real, the fact of a deed for that purpose having been executed,-holds that these matters must still be proved, but being proved the time required by the act shall be sufficient. The first answer to the argument is, that time, as such, never was requisite for these grounds of discharge. It was only available as a means of proving such things as were requisite, as in the case of abbey lands, that the lands in question had belonged to one of the greater monasteries, and that such monasteries held them discharged of tithes, in which case the act of Henry VIII. gave to the lay proprietor a right to the same defence; but for this purpose it was necessary to shew the history of the property 300 years ago, not only as to the possession by the abbey, but that the lands were held by it discharged from tithes. If all this If all this were capable of direct proof, no question would arise upon the lapse of time; so in the case of a discharge by composition real, if the deed be produced with all proper parties, time would be immaterial; but at this period such direct proof cannot in ordinary cases be produced; practically, therefore, the cases are found to depend upon the inference arising from length of time. The fact of non-payment even within modern times was considered sufficient proof of a title to a discharge by the abbey, and non

payment coupled with slight evidence of a deed having existed, was sufficient to establish a composition real, and in cases of modus the non-payment of tithes and the payment of the substituted duty was sufficient to establish the fact of an agreement at the time at which it could have been legally entered into. But in all cases time was only the medium of proof, and was liable to be repelled, and the inferences from it were liable to be refuted by any positive evidence inconsistent with such inferences when such attempts were made it became necessary to enter into an investigation of proofs of a date so remote as to preclude the hope in many cases of coming to any certainty or satisfactory conclusion, and in all cases leading to great expense.

The preamble is therefore obviously inaccurate in speaking of shortening the time required for the valid establishment of claim of modus and discharge, none being required; but it appears to me to mean that the expense and inconvenience of suits for tithes ought to be prevented, by establishing a certain limitation of times for those purposes after which claims of moduses and discharges should not be questioned. It was also said, that the act uses the technical terms modus and discharge; but that as the law knows no modus or discharge except connected with circumstances necessary to give them validity, the act can only be held as referring to such moduses and discharges as would have been valid before the act. It would perhaps be a sufficient answer to this argument that the act does not profess to deal with moduses and discharges, but with claims to moduses and discharges; and it is evident that if this construction should prevail, the act, instead of being a protection to the occupier, would in many cases be prejudicial to him. Under the law, as it was applied in practice before the act, a comparatively short modern usage of nonpayment, not met by any contrary evidence, was sufficient proof of immemorial nonpayment and of all the inferences arising from it; whereas, under this construction of the act, it might be necessary to extend such proof to sixty years, or to two incumbencies, and three years of a third, which might embrace an entire century. The Vice Chancellor says, that the act only professes to aid the proof of a modus, and

not to make good a modus which before the act was invalid. Suppose a payment claimed as a modus proved to have been paid during the period required by the act, could the plaintiff be permitted to shew that such payment could not have had a legal origin by reason of its rankness? If such proof could be made, and it was to be admitted, the whole object of the act as to moduses would be defeated; and if it could not be admitted, then the act has made that a good modus, which before the act was invalid.

The opinions of Lord Chief Justice Tindal and Mr. Justice Cresswell are founded upon the same grounds, assuming that before the act time constituted the essence of a valid modus, and was only one of the essential grounds of a discharge, and that the act intended to deal with one essential only, namely, time, and to leave the other untouched, a supposition contrary to the expressed terms of the act, and inconsistent with the legal state of the interests upon which it was to operate. It seems, indeed, to be admitted, that in cases of modus, enjoyment for the time prescribed supersedes the necessity of any other proof, and why not as to claims to discharges? One sentence embraces both. Suppose the words "by composition real or otherwise," had been omitted, and the enactment had been that all claims to discharges of tithes should be deemed good and valid in law, and absolute and indefeasible upon proof of enjoyment for the prescribed time, and that nothing but such enjoyment need be pleaded; could it be contended that the particular ground of discharge must be pleaded and proved, and its legal validity established? And if so, how much of such legal validity need be proved? Certainly not what was before necessary; because the discharge from tithes in the hands of the abbey at the time of the dissolution,—an essential part of the title to the claim before proved by immemorial non-payment-need no longer be so proved. The words "by composition real," are introduced by way of example only, and the subsequent words "or otherwise," render them useless; the whole being tantamount to an enumeration of every possible ground of discharge, which would be equivalent to the simple words, "all claims to discharge from tithes." Upon

this principal point, with all respect and deference to the opinions of the very eminent Judges who have thought otherwise, I do not hesitate to concur with the great majority who think, that under the act the simple fact of enjoyment of the discharge. claimed for the prescribed time, is all that need be pleaded and proved as an answer to a demand for tithes.

Another point has been raised by Vice Chancellor Wigram, and glanced at by Chief Justice Tindal and Mr. Justice Cresswell, and adopted by the Chief and other Barons, and for which, therefore, there is a much greater balance of authority than upon the other point in support of the decree; although Chief Justice Tindal and Mr. Justice Cresswell abstained from giving any opinion on it, and the Chief and other Barons state it to be a question of great difficulty. The question is, whether the act applies to cases in which the claim is not for a discharge from all tithes of the land in question, but from some of such tithes only. The fact that tithes had been paid for other matters produced upon the lands in question, is not alleged, or put in issue in the pleadings; but the bill claiming tithes only of certain titheable matters and things, the answer, meeting the claim made, says, that no tithes, &c. have been paid for the said titheable matters and things during the period specified in the act. The case sent for the opinion of the Judges of the Common Pleas, notwithstanding the suggestion of Vice Chancellor Wigram, was in conformity with this state of the case upon the pleadings, and the question put was, whether under the act the discharge claimed could be maintained under the circumstances before mentioned. That the claim was for a discharge of the tithes of certain specified matters, and not for all tithes produced upon the lands in question, was open for consideration under this case, but not the fact that tithes had been paid for other matters; but the opinion of the Judges did not turn upon that point, Chief Justice Tindal and Mr. Justice Cresswell only alluding to it, but not giving any opinion upon the question, and Justices Coltman and Erle abstaining from any observations upon it. When the same case was argued before the Barons of the Exchequer, they must have been of opinion, that upon the case so stated the

question did not arise, for they suggested that the case should be altered, in order to raise it; and accordingly the defendant, I presume, consented to an insertion in the case of a statement that the tithes of other matters produced upon the same land had been paid. This was, perhaps, an improvident consent on the part of the defendant, because, if the answer properly pleaded the defence under the act, and the plaintiff intended to rely upon the fact of other matters from the same land having paid tithes, he ought, it would seem, under the 7th section, to have alleged such matter specially, which he did not do. This improvidence will not, however, affect my judgment upon the appeal, because, I must dispose of the case as it appears upon the pleadings. In one respect, indeed, the defendant has an advantage from the alteration made in the case, as it may be assumed, that in the opinion of the learned Barons the point was not open to the plaintiff. I cannot consider it as a fact, that tithes were paid for other matters from the same lands; but the point suggested by the Vice Chancellor Wigram, that the discharge is claimed in respect of certain matters only, and those in fact of modern introduction, is clearly open to the plaintiff and calls for my decision. Upon this two questions arise; first, does the act apply to claims of discharge of some only of the titheable matters? Secondly, if it does not, can the plaintiff upon the pleadings avail himself of that point?

Vice Chancellor Wigram, in discussing this part of the case, relies much upon the fact, that some of the matters for the tithes of which the discharge is claimed, were not known until after the time of legal memory; and after adverting to the law, that a modus for such matters might, nevertheless, be good, says, that a contract before the time of legal memory not to pay tithes of titheable matters then unknown, and thereafter to be introduced, would be merely void for want of consideration. If this be so, would it not follow that there could not be any discharge for tithes of matters not known before the time of legal memory; that is, no general discharge for all titheable matters? All such discharges are founded upon contracts, though not now capable of proof or specific exemption. The consideration for a modus differs only from the consideration for a dis

charge, because it is a remaining and continuing consideration; and if it may be good for articles recently introduced, so may the discharge; the one case assumes a contract that the land should be free from all tithes in consideration of the modus, and the other, that it shall be free from all tithes under the arrangement made or by virtue of some specific exemption. The principle of the rule as to produce, subsequently introduced, is equally applicable to both. Then the words of the act, coupling moduses and discharges in the same sentence, enact that every claim of modus or discharge shall be held to be valid, absolute, and indefeasible after the enjoyment specified. I think, therefore, that there is no foundation for the observation made as to some of the matters being of modern introduction; some of them indeed are as old as the land itself, such as grass not made into hay; but still the defence applies only to certain matters, so that if the act applies only to lands for which no tithes whatever have been paid, the defence may not be supported by the act. Upon this point the Barons of the Exchequer, and the Chief Justice Tindal, and Mr. Justice Cresswell, rely upon the words of the act, which requires the occupiers to shew the enjoyment of the land without payment or render of tithes, money, or other matters in lieu thereof, for the period specified; which, they conceive, means without payment or render of any tithes, as well of matters as to which no discharge is claimed as of the matters in respect of which the discharge is claimed. I cannot think this the proper construction of the term used, or the true meaning of "tithes," as used in the act. It is not disputed that there may be a valid discharge as well as a valid modus for any particular description of titheable matter, as well as for all the tithes of the land; when, therefore, the act speaks of "all claims of or to any exemption from or discharge of tithes," it must apply to and include all partial and particular as well as general discharges; but if in the same clause the same word is several times used, the fair and true construction is to attach to it the same meaning wherever it occurs. The act, then, dealing with partial and particular as well as general discharges, provides, that in cases in which render of tithes in kind shall be hereafter