The Sun.
London, England, 1829-07-03 00:00:00

except

ions, it

eyon

our province

to inquire.
We have nett to mention a species of Peal
Property of great importance, as to which there
is at present no limitation. The possessory. ac-
tion of quart impedit, by which the right to an
advowson is usually tried, may be brought upon
any presentation however remote. Thus the
title to an advowson may be questioned after a
family has been for centuries in the undisturbed
possession of it ; and upon the sale of an ad-
vowson, or of a next presentation, great trouble
and expence are generally incurred in making
out a title to the satisfaction of a purchaser.
There must be some difficulty in framing a
ration for a species of property of eo peculiar a
nature. Mere length of time would not satisfy
ustice, unless the period were much beyond the
ktsual bounds of living memory, because an op-
portunity of contesting the right may not occur
more tiktm once in a centniy. Lord Coke states
an instance of a living of his own in which a
person had been incumbent above fifty years ;
aim instances might easily be mentioned in which
two successive incumbents have continued for
upwards of a hundred gears. But adopting the
suggestion of Mr. Justice Blackstone, whose
high authority we are glad to have for this as
well as for some cart Amendments of the law
which we propo, we think a limitation may be
safely frame!, compounded of length of time
and numlitr of avoidances, or rather of presenta-
tiows or opportunities to present by the patron.
NA'e conceive that (counting from the time when
the title to an advowson has accrued in posses-
sion) as soon as sixty years have elapsed and
there have been three presentations, with insti-
tution and induction thereupon, by a person
claiming adversely to be patron, the right should
be barred, 'The length of the period is requir-
ed to guard a` ainst collusive avoidances and
Veteentations ; and it seems sufficient for this
vs;urpose. Presentations by the Crown, on the
promotion of the incumbent to a Bishopric, of
course will not be reckoned; but a presentation
by lapse we think ought, as an opportunity then
existed of asserting the right. It seems unne-
cessary to clog this limitation with disabilities
which have generally not been allowed where
rhil period exceeded twenty years ; but as against
-a remainder-man, after any estate less than an
estate tail, the period of sixty years must be
reckoned from the remainder coming into pos-
session en the determination of the particular
estate. It has been suggested that the period
Nhould be extended to one hundred years, and
that the adverse 'possession should be a bar
to all the world. It seems, however, more in
analogy to the general principles of the law
of England to give effect to adverse enjoy-
ment, only from the accruing of the right to be
barred.

On the still more important subject of Tithes,
*se propose at present to consider of a limitation
for them in the hands of the laity only. We
hope to suggest some improvements in the law
by which tithes in the hands of ecclesiastics may
remain equally valuable to them, and be rendered
less productive of vexation to the laity. We are
deeply impressed with the conviction that the
property of the Church should be held sacred,
and that the Clergy should be protected in the
enjoyment of their possessions and rights; but
we conceive that the Clergy might derive benefit
from regulations that might lessen the litigation
to which the claim to tithes now too frequently
gives rise, and might rescue this species of pro-
perty from the odium Which on this account is
tibmetimes unjustly cast upon it. We should
venture to bring forward any propositions on this
subject only after the most mature consideration,
and after an ample opportunity had been afforded
to those most immediately interested to give are
opinion as to their probable tendency; with this
view we have submitted certain questions, re-
specting tithes and other ecclesiastical property,
to the Right Reverend the Bishops; and we
delay proposing any alteration in the law upon
this subject, until we shall have been favoured
with the answers of such of them as may be
pleased to communicate their opinions to us.
We feel reluctance to propose any new rule
affecting the property of the Church without
their previous sanction.
We are fully prepared to say, that in our opi-
I:ion, the right to impropriate tithes in the hands
of the laity ought to be regulated by the same
principles as the right to any other species of
lay property. For this purpose, they are not to
be distinguished from common of pasture, esto-
vers, rent-charges, or any other profit issuing out
of land. They are in commerce, and they ought
to be subject to the same rules of limitation and
prescription by which other property is governed.
The law has been settled otherwise. There is
no statute of limitation applicable to the right to
impropriate tithes ; and, contrary to the general
principles of jurisprudence, by the practice of the
Courts, every thing has been . presumed to dis-
turb enjoyment and to stir up controversy. In
a parish where the rectory is nnpropriate, it can
be proved that no tithes have been paid for a
certain portion of land, and no claim has been
made for them, during two hundred years ; the
lay rector may have conveyed the tithes to the
owner of the land : the presumption of a Court
of Justice under these circumstances might be
expected to be that he has done so, and that the
deed has been lost : this is not like the prenimp-
tion of a lost grant of an easement which we
have ventured to censure: upon sound princi-
ples of reasoning, the legitimate inference frorri
the premises is that there was a grant by which
the tithes were severed from the rectory. Though
the existence of an Act of Parliament has been
presumed against the Crown to protect a much
shorter period of enjoyment, it has been held,
that such a grant cannot be presumed from non-
payment against the lay impropriator, and that
unless evidence be given of the grant hating
existed, tithes must still be paid to him. Long
enjoyment, which strengthens all other titles,
weakens this ; and here the longer that the
claimant has been out of possession, he has the
better chance to recover.

The doctrine appears to us equally unreason-
able that a composition real cannot be presumed
from any length of uninterrupted usage, and
cannot be established without-evidence of a deed
which, supposing it to have existed, was most
yrobably executed before the dissolution of the
monasteries in the reign of Henry VIII. We
likewise think, that where tithes belong to lay
impropriators, a modus that has de facto existed
and been acted upon for a given number of years
ought not to be set aside. The land in the
Parish, and the rectory, have been bought and
sold on the footing of the modus, there is no
public policy against the establishment of such
a modus, and it is very unjust between the par-
ties interested, that it should be sat aside for
supposed rankness or on any other ground.
It has been argued with much force, that the
decisions on which the present state of the law
on this subject rests are erroneous, and that the