from the payment of all manner of tithes by the said act.

In support of the demurrer it was contended, 1o. That the plaintiff's right as impropriator was not saved by the saving clause in the act: that it was clear it was not saved by the words of that clause, because it saves only rights of, in, to, or out of the moors or commons; and a right to tithes was not a right of, in, to, or out of land, but was a right to something collateral to the land. That tithes were an ecclesiastical inheritance, collateral to the estate of the lands; and of their proper nature due only to ecclesiastical persons, by the ecclesiastical law.

2. That the impropriator's right not only was not saved by the saving clause, but that it did not appear to be the intention of the legislature to save it; because it was highly reasonable that the impropriator, who derived great benefit from this act, by which the lands out of which the tithes arose were rendered much more profitable than they were before, should bear his proportion of the expence of the act. That by the lands which were sold to raise money for paying the expence of this act being exempted from tithes, the impropriator bore his just proportion of the expence, but nothing more.

3°. That if, however, the words of the saving clause did extend to the impropriator, and it could be supposed that the legislature intended by that clause to save his right, yet the clause was void, because it was repugnant to the body of the act, which expressly declared that the lands to be sold should be discharged from the payment of tithes. That the decisions of courts of justice with respect to private acts of parliament, were exactly the same as with respect to

deeds; and in a grant, every exception which was repugnant to the grant was void. That this, however, was a public act, and every clause in an act of parliament, repugnant to the body of the act, was void.

4°. That it would be very hard on the defendants, if they were compelled to pay tithes for lands which they had purchased, upon the faith of an act of parliament, declaring that they were discharged of tithes,

On the other side it was insisted for the plaintiffs, that this act of parliament was to be considered as a public act, only for the purpose of being judicially taken notice of by the Judges, without being specially pleaded; and for no other purpose whatsoever. That acts of this kind, though declared, for the special purpose mentioned in them, to be public acts, were never kept in the parliament roll, nor printed among the statutes; and did not receive the royal assent in the same words by which public acts receive it; that they were in fact to be considered as parliamentary conveyances, and not as public statutes, which concerned all the King's subjects.

That the saving clause was not void, though it was repugnant to the body of the act; because it was of the very nature of a saving clause that it should be repugnant to the body of the act; the object of it being, to control every thing in the act, as far as it affected the interests of persons not parties to the act. That if saving clauses were not to be so considered, they were useless; because if the rights of the parties were not expressly disposed of by the act, they would be saved to them, even though there were no saving clause: as if here the act had not declared that the lands should be discharged of tithes, the impropriator would have been entitled to tithes, though there had been no saving clause. A saving clause might have an operation, though not expressly

ante, f 43.

repugnant to the body of the act as if it had been declared in this case that the land should be freed from all charges, without mentioning tithes; and then there had been a clause, saving the right of the impropriator. That the cases of grants were totally unlike the present; for the reason why an exception contrary to the words of the grant was void, was, because the words of the grant were to be taken most strongly against the grantor.

Lord Ch. Baron.-"Without going into an elaborate argument in this case, it is sufficient to say that it falls within all the principles of a contradiction between a saving and an enacting clause in an act of parliament; and that the case is exactly the same as that of the Duke of Norfolk, as Alton Woods' case, and the case in Vernon. The legislature takes it upon itself to alter entirely the mode of tithing all the lands which are to be the subject of the inclosure; it is impossible to say that the rector is entitled to his tithes of the land in question, without saying that he would have it in his power to defeat all the purposes of the act, which the legislature never could intend. This case is, in point of principle, precisely the same as the case in Vernon. In private acts, in general, the legislature does nothing more than enable persons to enter into a contract, who could not otherwise enter into it; and the persons who are parties to the act, are expressly named in it; but here the legislature does a great deal more, it takes on itself to act on the land itself, to declare that it shall be discharged of tithes; accordingly, therefore, to the principles of the decided cases, and indeed of common sense, we think that the rector cannot claim his tithes, against the express words of the act of parliament; and that the demurrer must be allowed."

49. A private act of parliament appears to have May be rebeen formerly considered as an assurance of so high lievedagainst. a nature, that although it was obtained by fraud, yet it could not be relieved against by any of the courts of law or equity, but only by the power that made it; that is, by parliament: and Mr. Booth, in the opinion which has been mentioned, lays it down that inferior jurisdictions are as much bound to submit to a private act of parliament, as the meanest subject; provided the record is right. They may expound or explain, keeping to the intention of the makers, but not question or impeach what the legislature has thought fit to enact as an act of parliament. If there be any grievance or irregularity, that must and can be remedied or rectified only by another act of parliament. 50. Sir William Blackstone has however said, that a 2 Comm.346. private act of parliament has been relieved against, when obtained upon fraudulent suggestions; and has cited two cases in support of this assertion.

51. The first of these is Richardson v. Hamilton, in which the Court of Chancery set aside an act of the house of assembly of Pennsylvania. It may be seen in the book of decrees for the year 1732, pa. 344, at the report office of the Court of Chancery.

52. The second is a case determined by the House of Lords on an appeal from the Court of Sessions in Scotland, which shall be stated from the Printed Cases.

Dom. Proc

Sir James McKenzie being tenant in tail of an M'Kenzie estate in Scotland called Roystoun, with the concur- v. Stuart, rence of his only son George, and of his nephew Sir 1754. George M'Kenzie, the two first remainder-men, obtained a private act to sell the estate for payment of certain debts, which were stated in the act to amount

to 51,350 merks Scots, or 2,852l. 15s. 6d.; and the act expressly directed that the trustees should, out of the money arising from the sale of the estate, pay off the said sum of 51,350 merks Scots, and lay out the residue of the money in the purchase of other lands, to be entailed as the former ones.

Sir James M'Kenzie sold the estate, and prevailed on his son and nephew to consent that the whole purchase money should be paid to him without account, in consideration of his laying out 1,000l. thereof to the uses of the entail; and an agreement dated the 17th August 1739 was entered into for that purpose.

It was afterwards discovered that there were two debts included in the sum stated in the act of parliament, and in the agreement of the 17th August, as charges on the estate tail, which were in fact fictitious and fraudulent: in consequence of which Sir George M'Kenzie, who became entitled to an estate tail in the lands purchased, by the death of Sir James M'Kenzie, and his son George, brought an action in the Court of Sessions against the representatives of Sir James, and the trustees of the act of parliament, for an application of the residue of the purchase money, after payment of the just, true, and lawful debts, really affecting the entail, and for an account of what payments had been made.

It was objected that Sir George was, by the agreement of the 17th August, barred from calling for such

an account.

The Lord Ordinary, by an interlocutor, found that "Sir George was not barred by the agreement from objecting to the debts, or from proving the same to be fictitious, and not real debts affecting the estate of