§ Lord Tenterden, pursuant to notice, introduced his Bill for shortening the period of Prescription in respect of claims for tithes, and certain other cases, and to lessen the impediments to the transfer of real property created by outstanding terms and judgments. His Lordship observed that their Lordships were aware that the time of legal memory or prescription extended so far back as the reign of Richard the 1st, but it was often impossible to trace a right or a title so far back and the Judges were often obliged to tell Juries that they might presume that it existed as early as that period, because there was proof of its extending so far back as to afford some ground for the presumption. But this was an uncertain method, liable to mistakes and abuses, for different opinions might prevail among the Judges, as to what were good grounds for the presumption. In truth, the presumption might be defeated by matter of fact, and by a legal opinion, which made it open to many doubts. Sometimes, when things were claimed by grant, and the law generally held, that prescription was founded on some grant, and that grant could not be established, it was customary to presume the existence of the grant. This was another source of doubt. It seemed to him, therefore, much better to fix by law a much more limited period, to the extent of which distinct proof must be given. This would be more reasonable and less uncertain. The Bill which he introduced was divided into distinct parts. The first part related to claims of profits arising out of land, such as rights of common; and as to such rights, his Lordship proposed that they should not be defeated where uninterrupted enjoyment for sixty years could be proved, even where the right could be established only for thirty years, and its commencement could be shewn; he meant, that it should not be defeated merely by proving the commencement, unless it was also proved that the commencement was illegal. The second part related to what in law were entitled easements, by usage 443 enjoyed by one over the lands of another; and as to these, he proposed that they should not be effectually challenged where an uninterrupted enjoyment for forty years could be proved. The third part related to ancient lights and their obstruction. As to these, also, Judges were often obliged to leave it to Juries, to presume that they were ancient lights. It was, in his opinion, preferable to fix the period of twenty years by law; for which period, if uninterruptedly enjoyed, they were to be secure from challenge unless originally enjoyed by contract or agreement. The fourth part, and what perhaps would be reckoned the most important part, was that which related to tithes. At present, under the maxim of nullum tempus occurrit ecclesiœ, moduses in lieu of tithes could be challenged and set aside, unless they could be proved to have existed or presumed to have existed so far back as the time of legal memory. But there again the doctrine of presumption was resorted to; and it was much better that some reasonable time should be fixed, up to which positive proof of the existence of the modus should be required, and at which, if the proof was given, the modus should be unchallengeable. He proposed to apply to modusses the principle he had first stated, and he would make evidence of the enjoyment of land for thirty-years without the payment of tithes sufficient to establish the right to exemption, or to pay a modus as the case might be, unless a contrary practice could be distinctly proved at some antecedent time, and he proposed, where the evidence extended to the enjoyment for sixty-years, to make the right absolute and indefeasible unless contract or agreement, as in the other cases, could be established. He was himself most sincerely attached to the Clergy of the Church of England, and should be very ungrateful if he were not; but it was better for them as well as for others, that some reasonable time should be fixed by law as to these matters. He had felt much difficulty in settling, to his satisfaction, the time at which the prescription should begin to run against the different persons interested, and some might think the end of three years from the passing of the Act too short a period, and others might think it too long. He had, however, fixed on three years, and the Act was not to extend to any action or suit already depending, or which might be begun within three years. He had in- 444 troduced provisions to save the rights of persons non compos, of infants, married women, persons absent beyond the seas, &c, during the period of their incompetency to urge their claims. The Bill also made some beneficial alterations in the mode of setting out the claims on the record. Another subject to which the Bill applied was what were called terms for years in conveyances, and it was proposed that a certain period should be fixed—two years, for instance—from the time after they should be satisfied, at which period they should be held in law to be passed and gone, without any formal surrender; and as to terms attending the inheritance, and which the owner of the inheritance might at any time call on the termors to surrender, it was proposed that the owner should hold the inheritance perfectly purged of them. He had availed himself of the suggestions of the late Law Commissioners, where he thought them suitable to his purpose.
The Bishop of Bristolwas anxious that the contest about moduses should be put an end to, but it was of the last consequence that full notice should be given to parochial incumbents as to the time in which the prescription began to run, and that ample time should also be afforded them to assert their claims. The clerical incumbent stood in a different situation in this respect from the lay impropriator, for the former was often negligent in the prosecution of his claims, from a desire to avoid differences with his parishioners, and especially with those to whose patronage he might have been indebted for his living.
The Archbishop of Canterburywas satisfied that the noble and learned Lord was actuated by no unfriendly disposition towards the Clergy of the Established Church, and that he would take care to avoid any violation of their property. He should have been more alarmed if such a Bill had come from less high authority, and begged to be understood as not pledging himself either one way or the other till he saw the details. He agreed with his right reverend brother, that it was desirable that the clerical incumbent should have ample notice and time to prosecute his rights. He suggested to the noble and learned Lord also, to consider if a more summary mode of proceeding might not be adopted in regard to the claims for tithes.
§ Lord Tenterdenonly wished the Bill to 445 be read now a first time, when it would be printed, and stand over till after the recess for the consideration of professional persons, and those who felt themselves interested, to see how far the provisions of the Bill were sound in principle and susceptible of execution. As to the suggestion of the very reverend Prelate, he had engagements which prevented his forming a plan of that description; but if a proper one were proposed by any other of their Lordships, he would be ready to assist and to support it.
The Lord Chancellorsaid, he could not allow the question to be disposed of without expressing his great admiration at the able and luminous manner in which the noble and learned Lord had brought forward the measure, and which, he had no doubt, in that part which related to the Church, would finally receive the approbation of those among the lay and clerical orders whom it affected. He would not follow his learned friend in the details of the Bill, but he was anxious to declare that, in his opinion, a more large or substantial measure of legal reformation had seldom been propounded. It required professional knowledge to be aware of all the evils attending the present system of prescriptive rights, and it required professional knowledge to understand the great importance of the Bill, and the advantages it would bestow when substantially adopted by the Legislature, and passed into a law. The part which the most reverend Prelate, and the right reverend Prelate, commented upon was certainly the most important of all; but he could assure the House that some parts of the Bill respecting terms of years, or what were called outstanding terms, were not of much less importance. The measure, in his opinion, proposed a most salutary amendment of the existing law in that respect, and it tended to the lopping off of much chicanery, by which preferences were given or obtained in cases of encumbrances on real estates, and to the extinction of a most expensive legislation. The Bill performed a great good with respect to those outstanding terms, and to that practice known in the Court of Chancery by the name of squeezing out certain encumbrances, by one encumbrancer catching hold of another, which was, notwithstanding, a mere ghost or shadow unexpired, which had been satisfied, though not formally surrendered. This correction of the practice of squeezing 446 out encumbrances was a part of the Bill almost equally important with that which related to the property of the Church. He agreed with his excellent noble and learned friend in the principle of the Bill, and he only thought it right that time should be afforded to those whose interests were affected by it to examine it in detail, in order that the House might have the benefit of both ecclesiastical and professional opinions. Undoubtedly there were points touched on by the right reverend Prelates which called for much attention, and he agreed with them that it would be very hard to let a person suffer who had allowed his rights to slumber, not from any symoniacal consideration, but from an honourable feeling; for it was not probable that a person who had received a good living would turn round on his patron, and give notices which might have a doubtful appearance. He would not occupy their Lordships with any further observations, but he could not avoid saying thus much in order to avoid the appearance of neglect to the measure of his noble and learned friend, and he would conclude by wishing it all possible success.
The Earl of Fifeobjected to the inquisitorial powers given in bankruptcy cases, and made several observations on the tendency of Lord Wynford's Fraudulent Debtor's and Law Expenses Bills, and remarked, that under the former of these Bills, a man who was called fraudulent because he was unfortunate, might be, coffined up in a narrow cell of a prison, till nothing remained but bones, and till the flesh was rotten. He was proceeding with these observations, when he was called to order by
The Lord Chancellor, who observed, that it was a rule in law that there must be an end to litigation, and it was a rule in legislation that there was an end of debating when a measure was passed. The bills to which the noble Earl alluded were not then before the House, and it was therefore, manifestly irregular to debate them at that time.
The Earl of Fifethen said, that he would take another opportunity of calling their Lordships' attention to the subject.
§ The Bill read a first time.