TITHE RENT-CHARGE. 247. In what essential features do the tithe rent-charges created by the "Tilhe Commutation Acts" differ from the tithes for which they were substituted in respect of (1) the nature and incidence of the obligation, and (2) the mode of recovery? (1.) Tithes are defined as the tenth part of the increase yearly arising and renewing from the profits of lands, the stock upon lands, and the personal industry of the inhabitants; the first species, being usually called prædial, as of corn, grass, hops and wood; the second mixed, as of wool, milk, pigs, &c., consisting of natural products, but nurtured and preserved in part by the care of man ; and of these the tenth must be paid in gross; the third personal, as of manual occupations, trades, fisheries, and the like; and of these only the tenth part of the clear gain and profits is due; nor are the tithes generally due in respect of these at all except so far as the particular custom of the place may authorise the claim. From the above definition it may be inferred that whatever is of the substance of the earth or is not of annual increase, as stone, lime, chalk, and the like, is not in its nature titheable, nor is tithe demandable except by force of special custom in respect to animals feræ naturæ. Tithes do not, apart from the Tithes Commutation Acts, merge, though they and the land from whence they arise belong to the same person. The tithe rent-charges were created by 6 & 7 Will. IV. c. 71, and the various Acts since passed amending the same. They fluctuate according to the price of corn. They can be made to merge whenever both the tithe rent-charge and the land from whence they arise belong to the same person. No person is liable for the payment of these tithe rent-charges; but they are recoverable in the manner hereinafter mentioned. Any ecclesiastical person (i.e., a clergyman) by agreement with the landowner may take land instead of his tithe rent-charge, but cannot take more than twenty acres in the whole by virtue of any such agreement or agreements made in the same parish. This latter provision, however, does not extend to impropriators or lay rectors. (2.) Tithes unpaid may be recovered by suit in one of the Ecclesiastical Courts, whether the tithe owner be a clergyman or lay appropriator, provided the right does not come into question, but only the fact whether or not the tithes allowed to be due are really subtracted or withholden. But it seldom happens that tithes are sued for in this way; for various statutes have provided a summary method of proceeding before magistrates in petty sessions, except where the actual title to the tithe or the actual liability or exemption of the land is in question. The tithe rent-charge can be recovered by distress if in arrear for twenty-one days after any half-yearly day of payment. No more than two years arrears' can be recovered by distress. If the tithe rent-charge be in arrear for forty days after the half-yearly day of payment, and no sufficient distress be found upon the premises, the owner of the tithe rent-charge can obtain a writ under which the sheriff delivers him possession of the lands charged with the rent-charge. The tithe-owner is entitled to hold the lands until all arrears (not exceeding two years' arrears prior to the time of taking possession) and costs are fully satisfied. The Ecclesiastical Courts cannot try the right to tithes unless between the clergy themselves, and can only compel the payment when the right is not disputed. (2 Steph. Com., 8th ed., 724, 733; Eustace Smith's Summary of Ecclesiastical Law, 64-7; Kerr's Student's Blackstone, 295.) The new remedies attached to rent-charges, not being rent incident to a reversion, by sect. 44 of the Conveyancing and Law of Property Act, 1881, will also apply to tithe rent-charges. TRUSTEES. 248. If an executor, who is also appointed trustee of real and personal estate, prove the will, can he subsequently disclaim the trusts? Would his position be in any way altered if he disclaims the trusts before proving the will? No, he cannot disclaim the trusts after proving the will, for by the fact of his taking out probate he is deemed to have accepted both offices. He may disclaim the trust of the real estate first and then prove the will, as the offices of trustee and executor, though vested in one person, are distinct. 249. Can a trustee or agent, empowered or authorised to sell by public auction, under any and what circumstances sell by private contract; and, vice versa, if empowered or authorised to sell by private contract, can he sell by public auction? An agent or trustee authorised to sell by public auction either generally, or even for a specified sum, cannot, whatever price be offered, sell by private contract; but in one or two recent cases, after an abortive attempt to sell by public auction subject to a reserved bidding, a sale by the trustee or agent by private contract at the reserved price has been upheld, and the title has, under special circumstances, been forced on the purchaser. And an express authority to sell by private contract would not, it is conceived, justify a sale by auction unless the authority were to sell for a specified sum and the price obtained at the auction (after payment of the incidental expenses) exceeded or equalled that amount. Nor does an authority to sell to A. for a specified sum necessarily justify a sale to B. for that (or, it is conceived, for any greater) sum. (Dart's Vendors and Purchasers, 5th ed., vol. 1, 65-6). Unless it is expressly directed to the contrary in the trust instrument, by 23 & 24 Vict. c. 145, ss. 1, 32, 34, trustees who have a power of sale over hereditaments under any deed or will coming into operation between 28th August, 1860, and 31st December, 1882, may sell by public auction or private contract, and this would include a trust for sale, though this latter point has never been decided, for to hold otherwise would be placing a narrow construction on the Act. (Davidson, vol. 3, 3rd ed., 565.) As to instruments coming into operation after 31st December, 1881, by 44 & 45 Vict. c. 41, s. 35; trustees may sell either by public auction or private contract in the absence of a contrary intention being expressed in the instrument (23 & 24 Vict. c. 145; ss. 1, 32 and 34 are repealed by 45 & 46 Vict. c. 38, s. 64). 250. The trustees of a settlement, at the request of the tenant for life, leave the settlement funds in a business whereby considerable profits are made, but such employment of the funds is not within the scope of their powers. How will the profits be dealt with as between the tenant for life and the reversioners? So much of the income as is equal to interest on the capital at the rate of £4 per centum per annum will be paid to the tenant for life and the surplus income will be re-invested from time to time and added to the capital. This is in accord with the decision of V.-C. Hall in Re Hill, Hill v. Hill (50 L. J. Ch. 551). The order in that case dealt with a past state of facts, where the unauthorised investment had gone on for years, and did not provide for the interest on the additional capital thereby created from time to time being paid to the tenant for life; at least, it is not so stated in the report. 251. An action is brought by A. against B. and C., trustees, to make them liable for breaches of trust, and succeeds against both. B., however, contends from the first, that as between himself and C., the latter is primarily liable. What course should he take to test the question? Detail the various steps you think likely to be taken in such an action. B. should, in accordance with Order XVI., r. 17, set out his contention as above stated in his statement of defence in a separate paragraph or paragraphs after he has set out his answer and defence to the plaintiff's statement of claim, and in addition to delivering to the plaintiff he must in such a case deliver a copy to C.'s solicitor. No leave of the Court is necessary, as C. is a party to the action already. (Haynes's Chancery Practice, 48.) Such a claim of B. is not a counterclaim, for the plaintiff is not interested therein (see Harris v. Gamble, 46 L. J. Ch. 768; L. R. 6 Ch. 748), and must not be marked either outside or inside as a counterclaim (Furness v. Booth, 46 L. J. Ch. 112; L. R. 4 Ch. D. 586. For other cases, see L. J. Digest, 1875 to 1880, pp. 472-3). C. will then take out a summons to have directions as to how the action shall be tried, if the plaintiff does not take out a summons to obtain and succeed in getting an order striking out the clause raising B.'s contention against C. in his defence as embarrassing. (Padwick v. Scott, 45 L. J. Ch. 350; L. R. 2 Ch. D. 737 ; MacDonald v. Carrington, 48 L. J. C. P. 178; L. R. 4 C. P. D. 28; Huggons v. Tweed, (App.) L. R. 10 Ch. D. 359.) On the hearing of C.'s summons the Court will probably direct such pleadings as it may deem necessary to raise the two issues, and may direct the primary issue to be tried first without prejudice to the second; notice of trial will succeed the pleadings in the usual way. 252. It is required to appoint two new trustees of a settlement in the place of a deceased and a retiring trustee, to act jointly with the continuing trustees. The power to appoint new trustees is given by the settlement to the life tenant. The trust estate consists of a freehold estate of money, invested partly in Consols, partly in railway debenture stock, and partly on mortgage of freehold property. Sketch briefly the document or documents necessary for effecting the arrangements. What difference would there have been in the procedure prior to 1859, and by what statute was the change effected? The first instrument will be the deed of appointment of the two new trustees by the tenant for life and conveyance of the freehold estate and declaration of trusts of the Consols and railway debenture stock and of the money lent on mortgage of the freehold property. Such deed should be made by indorsement on the settlement. The deed will contain date, parties, recitals of the above facts, and all dealings (if any) with the trust property since the last appointment was made or the marriage was celebrated, whichever last happened, testatum appointment of new trustees by the life tenant in the place of the old ones, and declaration of trusts of the estate comprising the freehold estate, money in Consols, railway debenture stock, and mortgage of freehold property when transferred into the new trustees' names. The freeholds and the money on mortgage of freeholds will be transferred by separate instruments executed immediately afterwards without disclosing the trusts on their face, and these will be in the usual form, i.e., date, parties, testatum, operative words, with the addition of the words " as mortgagees" (see sect. 7 of 44 & 45 Vict. c. 41), parcels, habendum testimonium. The Consols and the debenture stock will be actually transferred by entries being made in the books of the Bank of England and Railway Companies respectively, and certificates will be afterwards sent on by the broker stating that the new trustees are the |