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consent of the owners, has power to do (p). Where a contract for sale contains no provision as to apportionment, the purchaser cannot call on the vendor to procure one (1).
Exceptions from the Tithe Acts. (1) Easter offerings, mortuaries, and surplice fees, which are commutable, but are not included with the tithes, unless expressly mentioned in the commutation agreement (r). (2) The same rule applies to tithes of fish and of fishing, and to personal tithes other than the tithes of mills, and to mineral tithes (»). (3) Payments in lieu of tithes in London, or ad calorem tithe payments in any city or town under any custom or private Act, or any tithes commuted or extinguished under any former statute (8).
Tithe rentcharge may be extinguished (1) by payment of money; (2) by gift of land; (3) by merger.
(1) Where the rentcharge does not exceed 20s. the Board of Agriculture may, if they see fit, upon the application of the owner of the land, or of the person entitled to the rentcharge thereon, by an order under their hands and seal direct that such rentcharge shall be redeemed by the payment, within such time as the Board shall direct, of a sum of money equal to twenty-five times the amount of the rentcharge (t). Where the rentcharge exceeds 20s. the consent of the bishop and patron is an additional requisite, whenever the person entitled to the rentcharge is entitled thereto in right of any benefice or cure (u). Where the land is used for public purposes or subdivided into very small plots, the Board may compel a redemption (w). The consideration money is paid to the owners in fee of the rentcharge, but if they are spiritual persons entitled in respect of their benefice or cure it is paid to Queen Anne's Bounty for the augmentation of the benefice (y). Extraordinary charge on hop-grounds, &c. (see ante), or the rentcharge in lieu thereof, may be redeemed at any time by paying the capital value of the charge (which is already fixed). Where the owner is an incumbent the money is paid to the Governors of Queen Anne's Bounty; or where there is an absolute owner, to him, otherwise into the Bank of England to the account of the PaymasterGeneral (3).
(p) 6 & 7 Will. 4, c. 71, s. 72; 23 & 24 Vict. c. 93, ss. 11-17.
(9) Re Ebsworth (1889), 42 Ch. D. 23.
(r) 6 & 7 Will. 4, c. 71, s. 90. As a rule fish caught in the sea are tithable by custom, but not so fish in rivers or ponds. See Burn.
(s) 2 Ste. Com. 764, n.; and 23 & 24 Vict. c. 93. As to London, see ante.
(1) 41 & 42 Vict. c. 42, s. 3.
(2) Ibid, ss. 1 and 5. For details of procedure to effect a redemption, see 9 & 10 Vict. c. 73 ; and 23 & 24 Vict, c. 93.
(2) Any landowner may give land not exceeding twenty acres, with the approval of the Board of Agriculture, in lieu of tithe or tithe rent-charge, whether rectorial or vicarial (a).
(3) Tithe rentcharge (i.e., appropriated tithe rentcharge) does not merge when the lands and rentcharge belong to the same person, but the owner, whether legal or equitable, and whether the lands are freehold or copyhold, may merge it by a declaration by deed made with the approval of the Board, and thereupon the rentcharge is extinguished (b).
Payments of the rentcharge come within the Apportionment Act, 1870. They are deemed to accrue from day to day, and to be apportionable in respect of time (c).
Recorery. Tithe rentcharge for each year is payable halfyearly on the 1st July and 1st January, by the owner of the lands out of which the rentcharge issues. The provisions of the Tithe Act, 1891, on the subject are as follows :“(1) Tithe rentcharge as defined by this Act issuing out of any lands shall be payable by the owner of the lands, notwithstanding any contract between him and the occupier of such lands, and any contract made between an occupier and owner of lands, after the passing of this Act, for the payment of the tithe rentcharge by the occupier shall be void. (2) Where the occupier is liable under any contract made before the passing of this Act to pay the tithe rentcharge, then he shall cease to be bound by that part of his contract, but he shall be liable to pay to the owner such sum as the owner has properly paid on account of the tithe rentcharge which such occupier is liable under his said contract to pay, exclusive of any costs incurred or paid by the owner in respect of such tithe rentcharge, and every receipt given for such sum shall state expressly that the sum is paid in respect of that tithe rentcharge: Provided that where the lands, out of which any tithe rentcharge issues, are occupied by several occupiers who have contracted to pay the tithe rentcharge, any of such occupiers shall be liable only to pay such proportion of the sum paid by the owner of the lands on account of that tithe rentcharge as the rateable value of the lands occupied by him bears to the rateable value of the whole of the lands occupied by such occupiers. (3) Such sum shall be recoverable from the occupier by distress in like manner as is provided by sections eighty-one and eighty-five of the Act of the session of the sixth and seventh years of the reign of King William the Fourth, chapter seventy-one, and the enactments amending those sections, and not otherwise." (Sect. 1.)
(y) 9 & 10 Vict. c. 73, ss. 7 and 8.
(3) 49 & 50 Vict. c. 54, s. 5; and T. A. 1891, ss. 9 (2) and 10 (4). See post.
(a) 6 & 7 Will. 4, c. 71, ss. 29, 62; 2 & 3 Vict. c. 62, ss. 19-21; 5 & 6
Vict. c. 54, s. 6.
(6) 6 & 7 Will. 4, c. 71, s. 71; 1 & 2 Vict. c. 64; 2 & 3 Vict. c. 62, s. 7; 9 & 10 Vict. c. 73, ss.
The term "owner" is thus defined in the Tithe Act, , 1891—(a) if the ownership of the lands or rentcharge is vested in the Queen in right of her Crown, it means the Commissioners of Woods, in substitution for the Queen; and (b) if the ownership of the lands or rentcharge is vested in the Duke of Cornwall, it means the keeper of the records of the Duchy of Cornwall, in substitution for the Duke of Cornwall; and (c) in any other case, it means the same officers or persons as are mentioned in the Tithe Act, 1836. (Sect. 9.)
In this Act also, unless the context otherwise requires, the expression “ tithe rentcharge” means tithe rentcharge issuing out of lands and payable in pursuance of the Tithe Acts, and includes any rentcharge into which a corn rent has, either before or after the passing of this Act, been converted under the Tithe Act, 1860, and which is subject to the like incidents as such tithe rentcharge as aforesaid; but does not include a rentcharge payable under the Extraordinary Tithe Redemption Act, 1886, nor a rentcharge payable under the Tithe Act, 1860, in respect of the tithes on any gated or stinted pasture, nor a sum or rate payable for each head of cattle or stock turned on land subject to common rights or held or enjoyed in common.
Formerly, if in arrear for twenty-one days, tithe rentcharge might have been recovered by distress and entry by the tithe owner after ten days' notice, in the same way as a landlord may recover rent reserved by a common lease ; but the
present mode of recovery is through the County Court under the provisions of the Tithe Act, 1891. By this Act it is enacted that “(1) Where any sum due on account of tithe rentcharge issuing out of any lands is in arrear for not less than three months, the person entitled to such sum may, whatever is the amount, apply to the County Court of the district in which the lands or any part thereof are situate, and the County Court, after such service on the owner of the lands as may be prescribed (c), and after hearing such owner if he appears and desires to be heard, may order that the said sum, or such part thereof as appears to the Court to be due, be, together with the costs, recovered in manner provided by this Act, and tithe rentcharge as defined by this Act shall not be recovered in any other manner.
(2) Where it is shown to the Court that the lands are occupied by the owner thereof, the order shall be executed by the appointment by the Court of an officer who, subject to the direction of the Court, shall have the like powers of distraint for the recovery of the sum ordered to be paid as are conferred by the Tithe Acts on the owner of a tithe rentcharge for the recovery of arrears of tithe rentcharge, and no greater or other powers; and if there is no sufficient distress the person entitled to the sum ordered to be recovered may proceed to obtain possession of the lands under section eighty-two of the Tithe Act, 1836. (3) In
(c) Rules under the Act have been duly made and issued, and are called the “ Tithe Rentcharge Recovery
Rules, 1891." (Parl. Paper, 1891, 193. Price 2 d.)
any other case the order shall be executed by the appointment by the Court of a receiver of the rents and profits of the lands, and of any other lands which would be liable to be distrained upon for the tithe rentcharge to which the order refers under the provisions of section eighty-five of the Tithe Act, 1836, and where any of such lands are held at one rent together with other lands in another parish, the Court shall apportion the rent between the said lands and the lands in the other parish in proportion to their rateable value, in which case the payment of such apportioned rent by the occupier to the receiver shall in every respect, as between the occupier and the owner of the lands, be deemed to be a payment on account of the total rent payable to the owner of such lands. (4) Subject to the prescribed regulations, the County Court shall have the same powers over receivers as in any other case, and may confer on the person appointed receiver any powers which the Court can confer upon persons appointed receivers, but the Court shall not have power to order the sale of the lands. (5) Any sum ordered by the Court under this section to be recovered shall be payable by a trustee in bankruptcy, sheriff, or officer of a Court who is in possession of the lands, in like manner as if it were tithe rentcharge recoverable under the Tithe Acts. (6) Where the occupier of the lands out of which the tithe rentcharge issues is liable under any contract made before the passing of this Act to pay the tithe rentcharge, and is consequently liable by virtue of this Act to pay the amount thereof to the owner of the lands, the owner of the lands shall serve notice of such liability on the owner of the tithe rentcharge, and thereupon, before an order under this section is made, there shall be such service on the occupier in addition to the owner as may be prescribed, and a hearing of such occupier if he appears and desires to be heard. Any owner of the lands who fails to serve such notice as aforesaid on the owner of the tithe rentcharge, shall not be entitled to recover from the occupier any sum which he has paid on account of tithe rentcharge as aforesaid, unless and until he has, after notice to the occupier of his application for the