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same manner, and to the same persons, as they were accustomed to pay.
It was further declared, that the said commissioners might sell so much of the said moors or commons as they should think fit, to raise money to pay the expences attending the obtaining and executing the act, and the expence of dividing the said moors and commons, making public highways, &c. &c.
It was further declared, that the persons who should become purchasers of the said lands so to be sold, should hold the same discharged from the payment of all manner of tithes, and other estates, rights, and duties whatsoever, to any person or persons, politic or corporate.
And in the said act were two clauses in the words following :- Saving always to the King's most excellent Majesty, his heirs and successors, and to all and
persons, bodies politic or corporate, his, her, and their successors, executors, and administrators, (other than the lord of the manor of Lanchester aforesaid, and all other persons entitled to a right of common in or upon the said moors or commons, his, her, or their heirs, successors, executors, or administrators respectively, and the person or "persons, bodies politic or corporate, his, her, and their heirs, successors, executors, and ad. ministrators, who shall by virtue of this act make any claim affecting the boundaries of the said moors or commons, or any claim of any right of common thereon, which shall be adjudged and determined against him, her, or them as aforesaid,) all such right, title, and interest as they, every, or any of them had or enjoyed of, in, to, or out of the said
moors or commons hereby directed to be divided and inclosed as aforesaid ; or could, or might, or ought to have had or enjoyed, in case this act had not been made.”
“ And be it further enacted, that this act shall be deemed and taken to be a public act, and shall be judicially taken notice of as such, by all judges and justices, and other persons whomsoever, without specially pleading the same.”
The impropriator of the parish of Lanchester, some years after the passing of this act, filed his bill in the Court of Exchequer against certain occupiers of land in the parish, stating that the commissioners under this bill had caused twelve plots of land to be sold, to raise money for defraying the expences of the bill: that the defendants, who were purchasers thereof, immediately improved their lands, and converted them into arable ground : that the plaintiff, to prevent any doubt which might arise whether the said lands were to be considered as barren land, and as such exempt from the payment of tithes during seven years, had not during that time required any tithes to be paid to him : that the defendants had during the preceding years been the occupiers of the lands which had been so sold, and had grown upon them great quantities of wheat, &c. : and requiring a discovery of the tithe which had arisen during those years; and praying an account of such tithes and that the defendants might be decreed to pay the amount thereof to the plantiff.
To this bill the defendants demurred; for that it appeared by the bill that the lands which were in the defendants' occupation were freed and discharged
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:
4o. 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 bé 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 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.
ante, ♡ 43.
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."