396 APrORTIONMEXT OF TITHES BY COMMISSIONERS. 



for a rent-charge, his remedy being by the surrender of his lease under 

 the 88th section of 6 & 7 TT7//. IV. c. 71 {Taslcer v. Bidhnan). 



Where there is evidence that a vicarage teas endowed with small tithes, 

 the vicar's right to them is established against all lands in the parish, 

 as to which no particular discharge is proved, although no small tithes 

 have ever been paid {Glee v. Hall). By the common law the rector has 

 a right to all such tithes as the vicar is not proved to be entitled to, and 

 the title of the vicar must rest either on direct proof of an endowment, 

 or on an endowment to be inferred by prescription or usage {Attorney- 

 General V. Ward). Tithes of beans and peas have been held to be com- 

 prised in the description of tithes of corn {ih.). 



AVhere an enclosure act enacted that it should be lawful for the 

 commissioner to apportion the rent-charge in lieu of tithes upon such 

 portion, as he should think fit, of the lands of A. B., the Court of Queen's 

 Bench held that it was not necessary for him to specify in his award the 

 lands on ivliich the rent teas to be charged (WiUoughby v. Willoughby). 

 The above case principally governed the decision of the Court of 

 Common Pleas in S'ih'ester v. Bedford, and Bedford v. The Warden and 

 /Society of Si' f ton Coldfeld. By a local enclosure act (5 Geo. IV. c. 14) 

 tithes were abolished, and yearly rents imposed in lieu thereof, which 

 yearly rents it declared should be charged on the land, and should be 

 paid at the rectory-house. The rector, " in addition to all present 

 ])Owers for recovery of tithes and compositions," was to have " the same 

 powers and remedies for recovering the said yearly rents," when in 

 arrear, " as by common law or statute are provided and given to land- 

 lords for the recovery of rack-rent." Provision was made for the ap- 

 portionment of the rent-charge in case of the division of the lands, 

 which apportioned part was " to be recovered from the lands or heredi- 

 taments so charged therewith, or from the owners thereof, in such and 

 the same manner as the whole of the yearly corn rents " were thereby 

 made recoverable. The commissioner was to determine what yearly 

 sums, according to the aggregate annual amount, were equivalent to 

 the tithes of each proprietor's old enclosed lands within the parish, 

 which said yearly sums were to be charged upon the old enclosed lands 

 of the respective proprietors as yearly rents payable thereout. The 

 Court of Common Pleas held firstly, 2^eT totam Curiam, that the statute 

 did not authorise an action by the rector against the owner of inclosed 

 lands in his parish for the non-payment of such rent-charge ; that a 

 distress for the aggregate amount of a rent-charge imposed upon lands 

 acquired before and subsequently to the act, was illegal ; and secondly 

 {Coclcbnrn C.J. diss.) that a distress on the occujiier for the amount of 

 the whole rent-charge on all the lands in the parish belonging to the 



