398 EXEMrXTON FROM TITHE. 



(Ross V. Smill>). In Hi/lrJiins v. MavgMn, cited by Eyre O.B. in Jones 

 y. Le David, it was held tbat land which from its exposed situation 

 would not LTOW corn without the expense of erecting stone walls to 

 protect it from the severity of the climate, is exempt. Land which is 

 of a good natural quality is not to be considered as "barren" withiu 

 2 & t E(hi\ VI. c. 13, but shall pay tithe immediately, although the 

 expense attending the breaking it up and liming it exceeds the return 

 made to the farmer in the several first years of cultivating it {Warwkk 

 V. Collins). The proper test of barrenness within this statute is, whether 

 the land requires extraordinary expense either in manure or labour to 

 bring it into a proper state of culture {Lord Sehca v. Povdl. 



The enjoyment of land producing titheable matters, without payment 

 of tithe for the period prescribed by 2 & 3 Will. lY. c. 100 (an Act for 

 shortening the time required in claims of modus dmmandi, or exemp- 

 tion fi-om or discharge of tithes), if adverse and as of right, creates a 

 valid and indefeasible exeynpfion from and discharge of tithes. But the 

 nonpayment of tithes of a particular thing for such period, in respect of 

 lands for which tithes or other titheable produce have been paid within 

 the statutable period, does not operate as an exemption from the pay- 

 ment of the tithes of that particular thing (SalMd (clerk) v. Johnson). 

 The legislature by stat. 5 & 6 Will IV. c. 75, did away with the dis- 

 tinction in regard to turnips, expressly providing that turnips severed 

 and eaten on the ground should be titheable in the same manner 07ilg as 

 if eaten without being severed. And the Court of Queen's Bench 

 decided in Fisher v. Burrel that milk drawn from the cow by hand, 

 and given to the calf before it becomes titheable, is exempt from tithe, 

 as well as milk sucked by the calf. 



The enactment of the Tithe Commutation Amendment Act (9 & 10 

 Vict. c. 73, s. 19), that everg instrument purporting to merge any tithes, 

 and made with the consent of the Tithe Commissioners, shall be abso- 

 lutely confirmed and made valid both at law and in equity in all 

 respects, is not limited to cases in which the person executing the 

 instrument has a title to the tithe, but operates as well where such 

 person has no estate in the tithe, as where his estate is insufficient to 

 effect the merger {Walker v. Bentley). The intention of the legislature 

 was to preclude all questions of merger of tithe in all cases where 

 declarations of merger had been made with the consent of the Tithe 

 Commissioners, leaving the parties affected by an erroneous declaration 

 to their remedy against the party making it ; and such being the inten- 

 tion, the merger is effected, although the sanction of the commissioners 

 has been erroneously given {ih.). 



A commissioner has by his award under the Tithe Commutation Act 



