PRINCIPLE OF APPORTIONMENT. 397 



same proprietor, though comprising lands not in tlic occupation of such 

 occupier, was a legal one. 



The -person entitled to the rent-charge in lieu of tithes, who distrams 

 vnder the Tithe Act, 6 & 7 Will. IV. c. 71, s. 81, is not entitled to in- 

 demnity in lieu of double costs under 5 & 6 Vict. c. 97, s. 2, if such 

 person avows under 11 Geo. II. c. 19, s. 22, and the plaintiff discon- 

 tinues his action of replevin {Neumham v. Bever). 



The princvple upon which an apportionment should he made was con- 

 sidered In re Appledore Commutation, where the valuer made an ap- 

 portionment which was objected to by landowners in the parish, and 

 such objectors were heard first by the assistant commissioners, who re- 

 ceived evidence for and against the objections, and then by the Tithe 

 Commissioners, according to sec. Gl. The tithes of corn and grain in 

 the parish of Appledore (part of which was woodland) were payable to 

 the rector, and moduses for all other tithes to the vicar, and a rent- 

 charge, in lieu of such tithes and moduses, had been awarded under 

 sec. 36 of 6 & 7 Will. IV. c. 71. Sir J. E. Honeywood, a landowner, 

 held ancient pasture land of the Dean and Chapter of Canterbury, by 

 lease, which forbade him to plough the land without their licence in 

 writing, for which he had never applied or purposed applying, but 

 lands of the Dean and Chapter within the same district had been 

 ploughed within living memory. The valuer in apportioning the rent- 

 charge under sees. 33 & 34, upon Sir John Honeywood's pasture lands, 

 assessed them with the vicar's rent-charge according to the modus, and 

 added a small portion of rent-charge. Is. per acre, to be paid to the 

 rector, as part of the gross rent-charge awarded to him, where it 

 seemed that the productive quality of the land admitted of its being 

 arable, and that there was a reasonable probability of its being tilled ; 

 but he made no additional assessment on the woodland, not considering 

 that a reasonable probability existed of that land becoming arable. The 

 commissioners confirmed the principle of the apportionment, and the 

 Court of Queen's Bench decided that a prohibition did not lie, as the 

 possibility of the land reverting to a different state of culture must be 

 taken into account in the apportionment ; and the commissioners must 

 make the best average they can. 



The onus of proving tluit the land is hairen, in an action for not 

 setting out tithes, is on the defendant {Lord Selsea v. Potvell). The 

 seven years during which heath or waste ground which has lain barren, 

 and paid no tithes by reason of the barrenness, but which is afterwards 

 improved and converted into arable ground or meadow, is exempt from 

 tithe by 2 & 3 EduK VI. c. 13, s. 5, begin to run from the time when 

 some act has been done to make the land more productive than before 



