CH. II. CHAPTER II. SUBJECT-MATTER OF 3 & 4 WM. IV. C. 27, s. 2, AND OF 37 & 38 VICT. c. 57, s. 1. PART V. THE 1st section of 37 & 38 Vict. c. 57, which has been substituted for the 2nd section of 3 & 4 Wm. IV. c. 27, enacts as follows: 37 & 38 Vict. c. 57, s. 1. 3 & 4 Wm. 3 & 4 Wm. IV. c. 27, 8. 34. "After the commencement of this Act (i.e. 1st Jan. 1879) no person shall make an entry or distress, or bring an action or suit, to recover any land or rent, but within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have first accrued to some person through whom he claims; or, if such right shall have not accrued to any person through whom he claims, then within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have first accrued to the person making or bringing the same." The 24th section of 3 & 4 Wm. IV. c. 27 enacts as follows: "No person claiming any land or rent in equity shall bring any suit to recover the same but within the period during which by virtue of the provisions herein before contained he might have made an entry or distress or brought an action to recover the same respectively, if he had been entitled at law to such estate, interest or right in or to the same as he shall claim therein in equity." The 34th section of 3 & 4 Wm. IV. c. 27 enacts as follows: "At the determination of the period limited by this Act to any person for making an entry or distress, or bringing any suit of Quare impedit or other action or suit, the right and title of such person to the land, rent, or advowson, for the recovery whereof such entry, distress, action, or suit respectively might have been made or brought within such period, shall be extinguished." PART V. CH. II. Definition clause of 3 & 4 Wm. IV. c. 27 (s. 1). The subject-matter of the 1st section of 37 & 38 Vict. c. 57 is defined by the 1st section of 3 & 4 Wm. IV. c. 27, the unrepealed provisions of which statute are to be construed along with the provisions of 37 & 38 Vict. c. 57. "Land" by the 1st section of 3 & 4 Wm. IV. c. 27 is Land. defined as extending to "manors, messuages, and all other corporeal hereditaments whatsoever and also to tithes (other than tithes belonging to a spiritual or eleemosynary corporation sole), and also to any share, estate or interest in them or any of them, whether the same shall be a freehold or chattel interest, and whether freehold or copyhold, or held according to any other tenure." The word "land" therefore cannot in these statutes include any incorporeal hereditaments except those tithes which do not belong to spiritual or eleemosynary corporations sole: Turnpike tolls are therefore not within the word land as used in these statutes (1). The case just referred to (1) arose on the 42nd section of 3 & 4 Wm. IV. c. 27 in a suit to recover interest on a sum of money charged by way of mortgage on such tolls, but the decision is clearly applicable to the whole Act and to 37 & 38 Vict. c. 57. "Land," as we have seen, includes those tithes which Tithes. do not belong to a spiritual or eleemosynary corporation sole. Originally non-payment of tithes for any lapse of time would not render land tithe free, unless a legal origin for the exemption could be shown (2). To remedy this, an Act (2 & 3 Wm. IV. c. 100) was passed "for (1) Mellish v. Brooks, 3 Beav. 22. (2) See Salkeld v. Johnston, 1 McN. & G. 242; Sheil v. Incorporated Society, 10 Ir. Eq. R. 411; Andrews v. Drever, 3 Cl. & F. 314. CH. II. PART V. shortening the time required in claims of modus decimandi or exemption from or discharge of tithes ;" and it has been settled, after some difference of opinion, that the provisions of the Act 2 & 3 Wm. IV. c. 100 are wholly unaffected by the Act 3 & 4 Wm. IV. c. 27, and that land in the latter Act, so far as it includes tithes, means estates in tithes only (1). Though the point was not raised in the cases referred to (1), it is quite clear that the recovery of penalties for not setting out tithes or of the value of tithes is also unaffected by 3 & 4 Wm. IV. c. 27. Such penalties were provided for by 53 Geo. III. c. 127, s. 5, which, though repealed by 50 & 51 Vict. c. 59, is still in force as to "tithes, offerings and compositions which have not been commuted or are otherwise still payable (2). The result, therefore, is that the effect of time in discharging land from tithes by non-payment is regulated by 2 & 3 Wm. IV. c. 100. The effect of time between persons claiming as against one another estates or interests in tithes not belonging to a spiritual or eleemosynary corporation sole is regulated by 2 & 3 Wm. IV. c. 100 and 3 & 4 Wm. IV. c. 27, and in the case of tithes belonging to a spiritual or eleemosynary corporation sole is unaffected by any statute. The commutation of tithes has made these questions now of little importance. How far tithe rent-charge is affected by 3 & 4 Wm. IV. c. 27 and the amending Act will be discussed presently. "Land," we have seen, includes in these statutes no incorporeal hereditaments except tithes not belonging to a spiritual or eleemosynary corporation sole. The incorporeal hereditaments which form the subject-matter of the (1) Dean of Ely v. Bliss, 2 De G. M. & G. 459, on appeal reversing judgment of Lord Langdale, M. R. 5 Beav. 574, and see S. C. at law, sub nom. Dean of Ely v. Cash, 15 M. & W. 617; Lord Shannon v. Hodder, 2 Ir. L. R. 223; Lord Shannon v. Stoughton, 3 Ir. L. R. 521; Sheil v. Incorporated Society, 10 Ir. Eq. R. 411. See also Bunbury v. Fuller 9 Ex. 111. (2) See schedule to 50 & 51 Vict. c. 59. CH. II. Rent. 2nd section of 3 & 4 Wm. IV. c. 27, or the 1st section of PART V. 37 & 38 Vict. c. 57, are comprised in the word "rent," and "rent" in these sections does not mean rent reserved on leases for years by contract between the parties as the conventional equivalent for the right of occupation, but rent existing as an inheritance distinct from the land (1). Thus, although a different opinion seems at first to have prevailed in Ireland (2), a person entitled to the reversion expectant on the determination of a lease may distrain for the rent thereby reserved at any time during the existence of the lease, although no payment of rent has been made for more than twenty years (3), and this has been held to be also the same with regard to penal rents (4). The word "rent," as will be subsequently seen in discussing the various sections of 3 & 4 Wm. IV. c. 27, is used in many places in the sense of rent reserved, and frequently in close juxtaposition with rent meaning rent existing as an inheritance distinct from the land; but when it is used as denoting the subject-matter of the 2nd section of 3 & 4 Wm. IV. c. 27 (now the 1st section of 37 & 38 Vict. c. 57), it always means rent so existing as an inheritance and nothing else (5). In the 42nd section of 3 & 4 Wm. IV. c. 27 "rent," as we have seen, means both rent existing as an inheritance and rent reserved; hence, although no length of time will bar the right to recover rent reserved by lease, so long as the lease under which it is reserved exists, yet the amount of arrears recoverable is limited in the same way as the arrears of rent existing as an inheritance (6). It is (1) Grant v. Ellis, 9 M. & W. 113. Donegan v. Neill, 16 L. R. Ir. 309. (2) Doe v. Bingham, 3 Ir. L. R. 456. (3) Grant v. Ellis, 9 M. & W. 113; Baines v. Lumley, 16 W. R. 674. And see judgments in Lessee of Crosbie v. Sugrue, 9 Ir. L. R. 17; Lessee of Parke v. McLoughlin, 1 Ir. C. L. R. 186; Spratt v. Sherlock, 3 Ir. C. L. R. 69. (4) Daly v. Lord Bloomfield, 5 Ir. L. R. 65. (5) See Doe d. Angell v. Angell, 9 Q. B. 328, 355. (6) Part III. Ch. IV. p. 193. CH. II. PART V. clear, and seems to have been never disputed, that the limitation prescribed by the 2nd section of 3 & 4 Wm. IV. c. 27 (now the 1st section of 37 & 38 Vict. c. 57) applies not only as between persons claiming an estate or interest in the rent as an inheritance, but also as between the owner of the rent and the owner of the land out of which it issues, so that a rent will, by the joint operation of the 2nd section of 3 & 4 Wm. IV. c. 27 or the 1st section of 37 & 38 Vict. c. 57, and the 34th section of 3 & 4 Wm. IV. c. 27, become extinguished by non-payment (1). The interpretation clause of 3 & 4 Wm. IV. c. 27 gives a most extended meaning to "rent," which, as defined, extends to "all heriots and all services and suits for which a distress may be made, and all annuities and periodical sums of money charged upon or payable out of any land (except moduses or compositions belonging to a spiritual or eleemosynary corporation sole)." "Any land" in this clause means any land in England or Ireland; an annuity charged on land in any other country is not governed by 3 & 4 Wm. IV. c. 27 or 37 & 38 Vict. c. 57 (2). Heriots. It was decided in Owen v. De Beauvoir (3), that under the provisions of the 3rd section of 3 & 4 Wm. IV. c. 27, which will be presently discussed, the time of limitation runs not from the first time of an instalment of rent becoming due and being unpaid, but from the last time. at which an instalment of rent is paid. It is obvious that, if this principle were applied to heriots and rents payable at long intervals, these might be extinguished without any default at all, if it so happened that the intervals at which they became due were greater than twenty years; and in Owen v. De Beauvoir (4) doubts (1) Owen v. De Beauvoir, 16 M. & W. 547; in error, 5 Exch. 166; James v. Salter, 2 Bingh. N. C. 505, and 3 Bingh. N. C. 544; Manning v. Phelps, 10 Exch. 59. See Dower v. Dower, 15 L. R. Ir. 264. (2) Pitt v. Lord Dacre, Ch. D. 295. (3) 16 M. & W. 547, affirmed 5 Exch. 166. |