plaintiff, therefore, was not entitled to recover costs under that statute, consequently the judgment formerly was only for the debt (o) found by the jury; and if the jury upon the trial had given costs and damages, it was incumbent on the plaintiff to enter a remittitur, and take judgment for the debt only (p); but an alteration has been made in this respect by stat. 8 & 9 Will. III. c. 11, which see, ante, p. 1300. If judgment be for the plaintiff by nil dicit, non sum informatus, or upon demurrer (9), the judgment may be entered for the whole debt demanded by the declaration. So if the issue be on a collateral matter (r), as on the custom of tithing or discharge by statute (s), which is found against the defendant, and the defendant hath not taken the value by protestation, he shall pay the value expressed by the plaintiff in his declaration; for by the collateral matter pleaded in bar, the declaration is confessed in the whole. If the action be brought against two or more defendants (t), and a verdict is given against one or two only of the defendants, plaintiff is entitled to judgment against those, although there be a verdict for the other defendants. It is expressly provided, that the statute of jeofails, 16 & 17 Car. II. c. 8, shall extend to this action.

III. Of the Stat. 6 & 7 Will. IV. c. 71, for the Commutation of Tithes in England and Wales, amended by Stat. 7 Will. IV.

1 Vict. c. 69, p. 1318; Stat. 1 & 2 Vict. c. 64, for facilitating Merger of Tithes, Stat. 2 & 3 Vict. c. 62, for explaining the Acts for the Commutation of Tithes, p. 1320; 5 & 6 Vict. c. 54, for amending the Acts for the Commutation of Tithes, p. 1320.

THE object of the statute 6 & 7 Will. IV. c. 71, as it may be gathered from the preamble, is to amend the laws relating to tithes in England and Wales, and to provide the means for an adequate compensation for tithes, and for the commutation thereof. The plan pursued for effecting this object, is to convert all the uncommuted tithes into a corn rent-charge, payable in money, according to the value of fixed quantities of wheat, barley, and oats, as ascertained from year to year by the average price for the seven years ending at the preceding Christmas.

(0) Co. Ent. 162, a, 2nd ed.

(p) See Dagg v. Penkevon, Cro. Jac. 70, where this mode was adopted. (9) Degge, 404.

(r) Costerdam's case, cited in Yelv. 127.
(s) Bowles v. Broadhead, Aleyn, 88.
(t) Styles, 317, 318.

being therefore introductive of a new law, the plaintiff shall recover what the statute appoints him to recover, and no more." Arg. Hardr. 152.

Sections 1 to 11 contain regulations relating to the appointment and general power of commissioners and assistant commissioners for the execution of the act; and by s. 2, all agreements and awards, and other instruments, or copies thereof, under their seal, are to be received in evidence without further proof; and no agreement or award is to be of any force, unless sealed or stamped as the act directs. Sections 12 to 16 relate to the interpretation of the act. Sections 17 to 31 provide for voluntary agreements for a rentcharge in lieu of tithes between land-owners and tithe-owners. The act treats the commutation as consisting of two separate processes: 1st, The determination of the total sum to be paid for the tithes of any parish; 2ndly, The apportionment of the total sum among the different lands on which it is to be charged. The first of these processes may be effected, 1st, voluntarily; 2ndly, after the 1st of October, 1838, compulsorily (u). Sections 32 to 35 regulate the mode in which the second of these processes is to be carried into effect. The 5 & 6 Vict. c. 54, s. 2, enacts, that any parochial agreement for the payment of a rent-charge instead of tithes, whether made before or after the passing of the act, if confirmed by the commissioners, shall be as valid as if made and executed before any proceedings had been taken towards making a compulsory award, and shall have the effect of making null and void all the proceedings towards such compulsory award, or incident thereto, except so far as the same shall be adopted in such agreement. Sections 36 to 52 of the stat. 6 & 7 Will. IV. c. 71, provide for the commutation on the supposition that no voluntary agreement has been made (14). By the 49th section, nothing in this act shall revive any right to tithes, which now is, or hereafter shall be, barred by any law (x) in force for shortening the time required in claims of modus decimandi, or exemption from or discharge from tithes, or for the limitation of actions and suits relating to real property. Sections 53 to 55, and 58 to 68, contain further provisions applicable to apportionment. The 56th and 57th sections, which, according to Mr. White, appear to have been misplaced, and also the 67th section, relate to the con version of the money rent-charge into a corn rent-charge. By sect. 67, lands are to be discharged from tithes from the 1st of January next following the confirmation of the apportionment, and the rent(u) See a correct Analysis of this Act, (x) See stat. 2 & 3 Will. IV. c. 100 by J. M. White, p. xvi. ante, p. 1305.

(14) Where a claim for a modus has been decided against by the commissioners, a different modus for the same lands may be set up, unless the commissioners have made their final award, even though a feigned issue under the 46th clause be pending, to try the validity of the first modus. Barker v. Tithe Commissioners, 9 M. & W. 129, affirmed on error in the Exchequer Chamber, 11 M. & W. 320. See Earl of Stamford v. Dunbar, 12 M. & W. 414.

charge paid in lieu thereof on the 1st of July and the 1st of January in every year (y); and by 7 Will. IV. & 1 Vict. c. 69, s. 10, it is enacted, that, with the first payment of rent-charge under any agreement, shall also be paid any sum which shall be agreed to be paid in consideration of the time (if any) which may intervene between the termination of any previous agreement or composition, and the time at which, by the agreement for commutation, the lands shall be discharged; and by sect. 11, the parties to a parochial agreement are empowered to agree that the lands shall be discharged from the 1st day of January next preceding, or the 1st day of April, July, or October preceding or following the confirmation of the apportionment, instead of the 1st day of January next following the confirmation. And by stat. 3 & 4 Vict. c. 15, s. 1, in every case where an annual sum by way of rent-charge shall have been fixed in any parish instead of the tithes, the commissioners are empowered to declare lands discharged from tithes at any period after the confirmation of the agreement or award, and before the confirmation of the apportionment, upon security being given for the payment of the rent-charge. By stat. 5 & 6 Vict. c. 54, s. 11, the commissioners are to fix the same half-yearly days of payment of rent-charge in a parish after the apportionment. By stat. 6 & 7 Will. IV. c. 71, ss. 69 to 71, the rent-charge is made liable to parochial and county rates, and subject to the same incumbrances and incidents as tithe before the act: these rates and charges were, by the 70th section, to be assessed on the occupier, who was entitled to deduct the amount thereof from his rent; but now, by stat. 7 Will. IV. & 1 Vict. c. 69, s. 8, the assessment may at once be made on the owner of the rent-charge. Section 71 of the stat. 6 & 7 Will. IV. c. 71 contains a provision, that any person seised in possession of an estate in fee simple or fee tail of any tithes, or rent-charge in lieu of tithes, may by deed or declaration, under hand and seal, in such form as the commissioners shall approve and confirm under their seal, release, assign, or otherwise dispose of the same, so as the same may be absolutely merged in the freehold and inheritance of the lands on which the same shall have been charged. This provision is extended by stat. 1 & 2 Vict. c. 64, s. 1, to any person or persons who either alone or together are seised of or have the power of acquiring or disposing of the fee simple in possession of any tithes or rent-charge; and by s. 3, where tithes and the lands charged therewith are settled to the same uses, the tenant for life may cause them to merge in the land. These statutes (z) extend to land of copyhold or any other tenure. A further extension of the merger of tithes will be found in the stat. 2 & 3 Vict. c. 62. tion 72 of the stat. 6 & 7 Will. IV. c. 71, contains a provision for future alteration of the apportionment; by virtue of this provision, any land-owner may discharge such portion as he may wish to sell,

(y) See also stat. 3 & 4 Vict. c. 15, s. 13.

(z) 1 & 2 Vict. c. 64, s. 4.

Sec

provided the residue of his land left charged with the rent-charge be of the value required by sect. 58, that is, three times the value of the rent-charge (a). Stat. 5 & 6 Vict. c. 54, s. 14, contains further powers for altering apportionments. By stat. 6 & 7 Will. IV. c. 71, ss. 79 and 80, if any tenant of lands at rack-rent dissent from paying the rent-charge, the landlord may take the tithes during the tenancy; and any tenant paying the rent-charge, is to be allowed the same in account with his landlord. By sect. 81, when the rent-charge is in arrear for twenty-one days, the person entitled thereto may distrain, after ten days' notice; but only two years' arrears can be recovered: and by sects. 82, 83, if rent-charge be in arrear for forty days, and there is no sufficient distress, a judge may order a writ to issue to sheriff to summon a jury to inquire and assess arrears; on the return of the inquisition, a writ of habere facias possessionem may issue, under which the land may be held by the owner of the rent-charge, till the arrears and costs, including the costs of cultivation, be satisfied; but not more than two years' arrears can be recovered. If the half-yearly payments of the rent-charge under this statute be in arrear and no sufficient distress be found, the owner of the rent-charge may recover such arrear for a period not exceeding two years, by assessment and writ of habere facias possessionem, under sect. 82, although he may not have attempted to levy the arrear by distress, under sect. 81, at the end of each, or any but the last of the halfyears; and although at the end of one or more of such previous halfyears there may have been a sufficient distress for the amount then due (b). Section 84 provides for the case of Quakers. By sect. 86, the provisions of stat. 4 & 5 Will. IV. c. 22, and 11 Geo. II. c. 19, (for which see ante, p. 626,) shall extend to all rent-charges payable under this act. By sect. 89, this act shall not affect any right to any tithes which shall have become due before the commutation. By sect. 90, this act is not to extend to any of the following matters, except by special agreement: 1. Easter offerings, mortuaries, and surplice fees (c). 2. Tithes of fish or of fishing. 3. Personal tithes, except mills. 4. Mineral tithes. 5. Tithes in the City of London. 6. Permanent rent-charge or payment in lieu of tithes on houses or lands in any city or town, under any custom or private act. 7. Lands, of which the tithes are already perpetually commuted or extinguished by act of parliament. By stat. 5 & 6 Vict. c. 54, s. 6, greater facilities are given for exchanging lands for rectorial or vicarial tithes. By sect. 7, the tithe commissioners have the power, if they think fit, to confirm old agreements for giving lands or money, or both, instead of tithes or glebe or commonable or other rights or easements.

(a) See stat. 2 & 3 Vict. c. 62, s. 2. (b) In the matter of the Camberwell Rent-charge Allotment, 4 Q. B. 151; 3 G.

& D. 365.

(c) See stat. 2 & 3 Vict. c. 62, s. 9.

CHAPTER

TRESPASS

1. In what Cases an Action of Trespass may be mainaamet. 7.

1322.

11. Where Trespass cannot be maintained., p.

111. Of the Declaration, p. 1332.

IV. Of the Pleadings, and herein of the new Rais J. CH

1. Of the Plea of Not Guilty, p. 1334.

2. Accord and Satisfaction, p. 1336.

3. Liberum Tenementum, p. 1337.

4. Estoppel, p. 1339.

5. License, p. 1310.

6. Process, p. 1343.

7. Right of Common, p. 1344.

8. Right of Way, p. 1344.

9. Tender of Amends, p. 1350.

V. Evidence, p. 1351.

VI. Damages, p. 1352; Costs, p. 1353.

1. In what Cases an Action of Trespass may be maintained. THE land of every owner or occupier is inclosed and set apart from that of his neighbour, either by a visible or tangible fence, as one field is separated from another by a hedge, wall, &c., or by an ideal invisible boundary, existing only in the contemplation of law, as when the land of one man adjoins to that of another in the same open or common field. Hence every unwarrantable entry upon the land of another is termed a trespass by breaking his close. The form of action which the law has prescribed for this injury is an action of trespass vi et armis quare clausum fregit, in which the plaintiff may recover a compensation in damages for the injury sustained. Although the words of the writ are quare clausum fregit, yet it has been adjudged, in many instances where the plain