Whether admissible in proof of collateral matters.

Such declarations must be made " ante litem motam" - extent of the rule.

(c) Slane Peerage, 5 Cl. & Fin. 40.

(d) See Shields v. Boucher, 1 De G. & S. 40, and cases there cited; and Doe v. Bavies, 11 Jur. 607, 10 Q. B. 314; Lloyd v. Wait, 1 Ph. 61.

(e) 6 Ir. Eq. R. 348; see Taylor on Ev. 412.

(f) Slane Peerage, 5 Cl. & Fin. 23.

(g) See 2 Russ. & Myl. 164; Berkeley Peerage Case, 4 Camp. 418;

Slaney v. Wade, 1 Myl. & Cr. 338.

(h) Airth Earldom, Hub. on Ev. 668.

(i) See Davies v. Lowndes, 7 Sco. N. R. 198, 214; and Walker v. Earl Beauchamp, and other cases there referred to; Slaney v. Wade, 1 Myl. & Cr. 338; Monckton v. Att.-Gen. 2 Russ. & Myl. 147; Reilly v. Fitzgerald, 6 Ir. Eq. R. 335.

(j) 1 Myl. & Cr. 338.

And a declaration is not rendered inadmissible in evidence by reason of the declarant, and the party relying on his declaration, having been in the same situation with respect to the matter in question (k).

And, as against third parties, recitals in a deed are not evidence unless the deed was executed by some disinterested member of the family (l): in a case where a conveyance by parties claiming as heiresses of the bodies of two female joint-tenants in tail recited their pedigree, this recital of their title by the then vendors was held to be no evidence against a subsequent purchaser, although the deed was thirty years old; there being nothing to show that the previous possession had been consistent with the pedigree (m): but, in an ejectment case, where a person entitled in remainder joined with the tenant for life (who was her relation), in selling the property, and the conveyance recited that she was the daughter of J. D., and the conveyance was executed by the tenant for life, the recital was held by the Court of Queen's Bench to be evidence of the fact, "no dispute having existed, and the parties having done that which they had a right to do if members of the family" (n).

Land tax, if not noticed in the agreement, is presumed to be a charge on the property: if stated to be redeemed, its redemption must be shown by the certificate of the Commissioners, the receipt of the Cashier of the Bank of England, and memorandum of registration (o).

Declaration by party in the like interest admissible.

Recitals, when evidence of pedigree.

Land tax - redemption of, how proved.

(k) Monckton v. Att.- Gen. 2 Russ. & Myl. 157; Doe d. Tilman v. Tarver, 1 Ry. & Mo. 141; Doe v. Davies, 11 Jur. 607; 10 Q. B. 314.

(l) Slaney v. Wade, 1 Myl. & Cr. 338; but see the judgment of the V. C. contra, 7 Sim. 614.

(to) Fort v. Clarke, 1 Russ. 601.

(n) Doe v. Davies, 11 Jur. 607; 10 Q. B. 314.

(o) See 42 Geo. III. c. 116, s. 38. As to the right of a remainderman to pay off the representatives of a tenant for life who redeemed the land tax out of his own money, see Cousens v. Harris, 12 Jur. 835. As to merger of redeemed land tax, see Blundell v. Stanley, 13 Jur. 998.

Tithe, also, is a burden the existence of which is presumed in the absence of agreement: the Law upon the subject is rapidly becoming less important under the provisions of the Tithe Commutation Act (p): the Commissioners acting under which have power, in making their award (q), to decide all questions as to the existence of any modus, or composition real or prescriptive, or customary payment, or any claim of exemption from or nonliability to payment of tithes (r); and their decision, unless reversed on an appeal brought within three calendar months after its being notified in writing to the parties interested, or their agents (s), is binding and conclusive; and no further time will be allowed by reason of the benefice becoming vacant, after the commencement, but before the expiration of the three months (t); there are exceptions of tithes of fish and fishing, and of mineral tithes, of payments instead of tithes in the City of London, and of permanent rent charges payable in any City or Town by custom or any local Act of Parliament (u); but, with these exceptions, all questions as to the existence or amount of liabilities of this description will eventually depend, and do already as respects a great part of the country depend, upon the Commissioners' award (v) for the particular district.

Tithes.

Commutation of, under late Act.

Decision of commissioners conclusive if no appeal.

(p) 6 & 7 Will. IV. c. 71; and see supplementary Acts, 7 Will. IV. & 1 Vict. c. 69; 1 & 2 Vict. c. 64; 2 & 3 Vict. c. 62; 3 & 4 Vict. c. 15;

5 Vict. c. 7; 5 & 6 Vict. c. 54; 9

& 10 Vict. c. 73; 10 & 11 Vict. c. 104.

(g) And which, if purporting to be sealed with the seal of the Commissioners, is made evidence by s. 2 of 6 & 7 Will. IV. c. 71.

(r) 6&7 Will. IV. c. 71, s. 45; and see 5 & 6 Vict. c. 54, s. 10.

(s) Sect. 46.

(t) Homfray v. Scroope, 13 Jur. 623.

(u) Sect. 90.

(v) 6 & 7 Will. IV. c. 71, ss. 52 and 66; and see 2 & 3 Vict. c. 62, s. 8.

As respects those localities in which the tithe has not yet been commuted, it may be sufficient to state shortly, that a composition real can be established only by direct or presumptive proof of its creation by deed before the 13 Eliz. (w); and that, before the passing of the 2 & 3 Will. IV. c. 100, a modus could be established only by similar proof of its constant payment from the time of legal memory (x); and that, to prove an exemption from tithe, it was necessary to show that the land had belonged to one of the greater monasteries, and was held by such monastery discharged from tithe at the time of its dissolution (y). By the 2 & 3 Will. IV. c. 100 (z), a modus (a) or exemption may be absolutely established as against the Crown or Duchy of Cornwall, or any lay person (not being a corporation sole), or any corporation aggregate, whether spiritual or temporal, by proof of payment of the modus, or enjoyment of the land free from tithe, during 60 years next before the time of the demand, and as against any corporation sole, by proof of such payment or enjoyment during two successive incumbencies, (or sixty years, whichever shall be the longer period,) and three years after the appointment and institution or induction of a third incumbent (b); but the act does not extend to cases where the modus or enjoyment can be referred to an agreement in writing; and in cases where, at the date of the Act, the tithes were in lease by deed, or subject to a temporary composition in writing, a period of three years is allowed to the tithe owner after the determination of the term of demise or composition (c); and the time during which the lands are held by the tithe owner are excluded from the period of computation (d). It has, after opposite judicial decisions (e), been recently decided by Lord Cottenham, C., in conformity with the opinions of eight of the twelve Judges, that in order to bring land within the operation of the above Act for the purpose of claiming an exemption from tithe, it is not necessary to prove its original capacity for exemption, by showing that it belonged to one of the greater monasteries (f): the Act, it may be observed, does not prevent a party from pleading a modus from time immemorial and proving it by the same evidence as he might have done before the statute (g).