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propriator is a claim of the tithe of corn, grain, and hay. But corn, grain, and hay, could not be part of what grew on a com- [ 430 ]

The tithes that arose upon this comnion (appendant to Swardland demesne) could have been only tithes of agistment, or of lambs, calves, wool, milk, and other things that could be the produce of a common. Now, a modus or other compensation must be in lieu of these specific tithes. This exemption therefore cannot relate to any other tithes, but such as could in their nature have arisen out of the common, whilst it continued common. — By lord Mansfield chief justice: The case of Stockwell and Terry differed very much from the present case.

The modus insisted upon in that case extended to all kinds of tithes; whereas the exemption insisted on in the present case is confined to the specific land called Swardland demesne, and doth not extend to the right of common. Here is no equivalent at all for the tithes of agistment, of wool, milk, lambs, or any other tithes of such a kind as could arise upon a common. The equivalent goes only to corn, grain, and hay; the tithe whereof could not arise upon the common, whilst it remained a common. In Stockwell and Terry, the rector was, as owner of the glebe, a party to the act of parliament: Here, the impropriator is not a party to this act of parliament. (7) And there the modus covered the right of common; it was a modus of 15s. which was paid for the Grange farm, in lieu of all tithes arising upon it, and of all the tithes of all the cows and sheep belonging to that farm that should be depastured on the said Down, which was afterwards inclosed and allotted to it. So that the modus covered not only the Grange farm itself with its appurtenances, but the common also: which is not the present case. In that case, lord Hardwicke decreed, that the modus should stand for the allotted lands, as well as for the Grange farm and its appurtenances; and accordingly, he dismissed the bill as to those lands, which the modus covered: But as to all the other lands of the common, which had before used to pay tithe of wood, agistment, and other small tithes, he decreed an account. Here, all rights are saved, generally, by this act of 26 G. 2. Consequently, the impropriator's right to tithes remains: And there is no need to show how they are due; because they are due of common right. The whole court were very clear, that in the present case the exemption and modus did not extend to the waste and common; and there [ 431 ] fore that the allotted lands, which had been part of that waste and common, having been subject to tithes before the allotment, must remain liable to them after it: which they held to differ materially from the cited case, where the modus did extend to

(7) And a claim of tithe can only be discharged by special words. Parkins v. Hinde, Cro. El. 161.

the waste and common. And lord Mansfield said, that the case of Lambert and Cumming was determined upon the same ground as lord Hardwicke's decree went upon in the case of Stockwell and Terry; namely, “ That what was before exempted shall “ remain exempted; and what was not before exempted shall pay tithe.” 3 Burr. 1375. [1 Bla. R. 402. S. C.]

E. 38 Geo. 3. Lord Gwydir v. Foakes. In the parish of Croydon, in the county of Surry, there was a large quantity of waste land, on which the tenants of the adjoining estates had rights of common. Before any inclosure was in contemplation, the tenants purchased the right to all the tithes of the lay impropriator in respect of their several estates. The conveyances were made in very general terms: “ All tithes arising out of or in respect of the several messuages or tenements, farms, lands, &c. The court of K. B. held that the tithes in respect of the rights of common appurtenant to such farms or lands passed by such grant, and the subsequent inclosure of the common could not vary the question, notwithstanding the increased value of such tithes.

7 Term Rep. 641. [Commons

[A. having purchased an estate and the tithes thereof, with inclosed by act of par

a right of common thereto annexed; the common was afterwards liament.]

inclosed under an act of parliament, and certain land was allotted to A. in lieu of his said right of common. No tithe is payable in respect of the allotted land (8), for the land in respect of which it is allotted is wholly free from tithe.

By the East Moulsey inclosure act it was enacted, “ That the 6 commissioners should set out, allot, and award certain portions 66 of lands out of the commons to be inclosed unto the impro“ priate rectors and curate in lieu of all great and vicarial tithes :" and the commissioners were required to distinguish by their award the several allotments to the rectors and curate respectively, and the same allotments were declared to be in full satisfaction and discharge of all tithes : Held under this act, that the tithes were not extinguished till the commissioners had awarded as well as allotted and set out the allotments; for the freehold did not vest therein before the award was executed. (9) As to ripping up an allotment to a benefice after 50 years elapsed for insufficiency, see Cooper v. Thorpe. (1)

An inclosure act appointed a corn rent to be paid in lieu of tithes to be ascertained by certain referees, and the exact amount declared by an order of quarter sessions. It appeared that the sessions merely received and filed the report of the referees; and

(8) Steele v. Manns, 5 Bar.& Ald. 22.

(9) Ellis v. Arnison, 5 B. & A. Rep. 47. See Farrer v. Billing, 2 B. & A. 171, and 1 & 2 G. 4. c. 23. § 1, 2.

(1) 1 Swanst. 92. I Wils. Ch. R. 55. S. C.

the court held that it could not be construed into - an order declaring the exact amount" to which such rent was to be increased. Held also, that the commissioners having made minutes in writing of their proceedings, the defendant could not be let in to shew by parol evidence that the allotments were made at an earlier period than appeared by the award, no search or inquiry having been made after such minutes or proof given that they were destroyed. The proceedings were the legal evidence of the fact when such allotments were made. (2)

An inclosure act directed that in lieu of tithes a corn rent should be payable to the person having possession and occupation of the lands. Part of the lands inclosed were uncultivated and untenanted for some years, during which time the owner lived on another estate. He afterwards

demised them to a tenant who entered and occupied. Held, 1st, That the corn rents were due for the time during which the land was unproductive; and,

that during that time the landlord was legally in the possession of the lands, so as to be liable to the burthens imposed by the act, and that the tenant coming under him was liable to be distrained on for the arrear of rent. (3)

By 41 Geo. 3. (U.K.) c. 109.938. The rector or vicar of any parish in which lands intended to be inclosed are situate by indenture under his hand and seal, with consent of the bishop of the diocese, and of the patron, may lease their allotments for not exceeding 21 years, commencing within 12 calendar months next after the award, so that the rents shall be reserved to the incumbent for the time being by four quarterly payments, and shall be the most improved rents that can be had without taking any fine or other consideration for granting such lease, a counterpart of which shall be executed by lessee; and no such lessee shall be made dispunishable for waste by express covenant; and power of re-entry on non-payment of rent shall be reserved in such lease.

By 1 and 2 Geo. 4. c. 23. $4. Whenever any leases to be granted by any incumbent under the above enactment shall by any means become forfeit or void, or are surrendered before expiration of the term, then the incumbent, with previous consent of the ordinary and patron, may grant a new lease of the lands so demised for such term of years as shall at the time of such avoidance be then unexpired of the term granted by such original lease, subject to the conditions therein then unperformed and capable of having effect.]

(2) Bendyshe v. Pearse, 1 Brod, & Bing. R. 460.
(3) Newling v. Pearse, 1 Bar.&. Cres. Rep. 437.

De non de cimando.

IV. Of moduses, or exemptions from payment of tithes

in kind; [of compositions real;] and of custom and

prescription. Difference 1. The difference between custom and prescription is this: between

Custom is that which gives right to a province, county, hundred, custom and prescrip- city, or town, and is common to all within the respective limits; tion.

in pleading of which it is alleged, that in such a county, or the like, there is and time out of memory hath been such a custom used and approved therein. Gibs. 674.

Prescription is that which gives a right to some particular house, farm, or other thing: in pleading of which it is alleged, that all they whose estate he hath in such land, have time out of mind paid so much yearly, or the like, in full satisfaction of all tithes arising on those lands. Gibs. 674. (1)

2. Custom and prescription are either de non decimando, or de

modo decimandi. [432) De non decimando is, to be free from the payment of tithes, (Spiritual without any recompence for the same. Concerning which, the

general rule is, that no layman can prescribe in non decimando ; that is, to be discharged abolutely of the payment of tithes, and

' to pay nothing in lieu thereof; unless he begin his prescription mando, but

in a religious or ecclesiastical person, and derive a title to it by laymen in general can- act of parliament. (2) As in the case of Breary and Manby,

Ex. Nov. 18. 1762. In the exchequer. Mr. Breary, rector of Midceptions.] dleton upon the Woulds of Yorkshire, brought his bill against

Mr. Manby, one of his parishioners, for great and small tithes arising from the defendant's lands. The defendant by his answer insisted, that part of his farm had time out of mind been exempt from payment of tithes of any kind, or any modus or compensation in lieu thereof; and by his witnesses proved, that no tithe, modus, or compensation, had within the memory of man been paid for such part of his farm. The court, at the hearing of the

persons may prescribe de non deci.

not,

(1) Bennet v. Read, 1 Anstr. 323. 1 Saund. R. 340. 6. Degge, c. 13. 268. And there is this difference between a prescriptive and customary modus, that the former is annexed to the lands which it covers, whereas the latter exists in notion of law, independent of the lands, by force of the custom of the district. In a prescriptive modus, therefore, the lands must be definite, and not liable to shift. And therefore a bill to establish a modus for every ancient farm, but not setting out the abụttals of each, was dismissed, although it was stated that the whole parish consisted of ancient farms. Scott v. Allgood, 1 Anst. 16. Vid. infra, divs. 8.& 10. of this title.

(2) Besides Breary v. Manby, in the text, see Sherwood v. Winchcomb, Cro. El. 293. Webb v. Warner, Cro. Jac. 47. Seld. c. 13. $ 2. 1 Roll. Ab. 653. Allen v. Pory, 2 Keb. 45. Bishop of Winchester's case, 2 Rep. 44.

cause, was clearly of opinion, that the mere non-payment of tithes, though for time immemorial, would not be an exemption from payment of them, without setting out and establishing such exemption to have arisen from the lands having been parcel of one of the greater abbies; and therefore decreed the defendant to account for the tithes of that part of his estate for which he claimed the said exemption. [3 Wood's Dec. 43.]

But all spiritual and religious persons, as bishops, deans, prebendaries, parsons, vicars (as heretofore abbots and priors), may prescribe generally in non decimando, for they are more favoured than lay persons; for this is still in a spiritual person, and so nothing is taken from the church: for such spiritual person was capable of a grant of tithes at the common law in pernancy. (3) And hence it is that the parson or vicar of one parish, that hath part of his glebe lying in another parish, may prescribe in non decimando for it; that is, (as hath been said,) to be free from the payment of any manner of tithe for the same. 1 Roll's Abr. 653. [Com. Dig. tit. Dismes (E2.)]

[But an ecclesiastical person cannot decline the payment of tithes, unless he prescribes in non decimando, and the maxim ecclesia ecclesiæ decimas solvere non debet, applies only as between rector and vicar of the same church. (4) But evidence that the land of a spiritual farmer has never paid tithes is sufficient to prove a prescription in non decimando. (5)]

But this general rule, that none but spiritual persons or corporations may prescribe in non decimando, is to be understood with several exceptions; as, first, that the king, as being mixta 1. The king. persona, may prescribe de non decimando ; by the same reason that as such, he is capable of tithes. Gibs. 674. [ante, 425, 426.]

Also the lessee, tenant at will, and copyholder of a spiritual 2. Tenants person, though a layman, shall in this respect enjoy the exemp- holders of tion of the lessor, who is supposed to reap the benefit of it, in spiritual reserving so much the greater rents by reason of such exemp- persons. tion. 1 Roll's Abr. 653. Deg. p. 2. c. 16. (6)

[ 433 ] [Hence a bishop may prescribe that he and his tenants for life, for years, and at will

, as well as his copyholders have been freed from the payment of tithes (7); nor will an interruption of the prescription, by a conveyance to a lay person abolish it, as the land being discharged of tithes when regranted to a bishop, the pre

(3) Gerrard v. Wright, Cro. Jac. 607.

(4) Warden and Canons v. Dean of St. Paul's, (1817) 1 Wils. Ch. R. 1. 4 Pri. R. 65. See Blincoe v. Barksdale, Cro. El. 573.

(5) Nash v. Molins, Cro. El. 206. Clavill v. Oram, Gwm. 1355.
(6) Crouch v. Fryer, Cro. El. 784. Wright v. Wright, id. 475.511.

(7) Branche's case, Moor. R. 219. Bowles v. Atkins, 1 Sid. R. 320. 1 Roll. Ab. 653. Lincoln (Bishop) v. Cowper, 1 Leon. R. 248.

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