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plaintiff, subject to the opinion of the court of king's bench, upon the following question; Whether the defendant could in this case set up any prescription, which would by virtue of the statute of 31 Hen. 8. exempt him from the payment of tithe. — For the plaintiff, it was argued, that the fact stated, That no tithes have ever been paid, [ 434 ] is no exemption of itself. It is no prescription of exemption. It is only evidence. It might have arisen from unity of possession, or other causes. It would be no foundation for a decree in equity, if it had been actually found by a verdict, that they have never been paid. A lord of a manor can only prescribe as the lands have been holden by his farmers and tenants at will. These are stated to be customary lands, parcel of the manor of Morland, holden of the lord of the manor, not saying, at the will of the lord; therefore they are customary freeholds. Now a lord cannot prescribe for his customary freeholders; though he may prescribe for his tenants and farmers of copyhold holden at will. Nor can he, in this case, prescribe as by the custom of the manor; for the custom of the manor, in general, is stated to be quite contrary. — For the defendant, it was answered, That no tithes having ever been paid for these lands from the 31 Hen. 8. a legal exemption will be presumed. Spiritual persons may prescribe in non decimando; and so may their farmers and tenants, and even their copyholder of inheritance: and customary estates of inheritance may be discharged in the same way; for the freehold is in the lord. Though many other parts of this estate have paid tithe, yet there may be a prescription for a discharge of part: A prescription may be for a single part alone. And this is the only tenement that lies in this particular parish: These customary tenures are not freeholds. The timber, the mines, are in the lord. And the rule is; every thing is in the lord, that custom hath not taken out of him. — This cause standing in the paper for further argument; Sir Fletcher Norton, who was for the plaintiff, said, that the particular customs of the manor (which had been inquired after in the course of the former argument) were not yet sent up. By lord Mansfield: What signify the customs ? Clearly, the freehold is in the lord. - Sir Fletcher Norton acknowledged, that he had a great difficulty to get over; it being stated in the case itself, That this was the only customary tenant belonging to the manor which was within this parish. And by the court; It is a settled point, that the freehold is in the lord. And lord Mansfield added, that this is rather stronger than the case of copyholds: for copyholders had acquired a permanent estate in their lands, before these customary tenants had done so. And the court were of opinion, that the lord might prescribe for this customary tenant in non decimando, and that here is sufficient evidence of such prescription. 3 Burr.1273.

3. [Coun- .Also, a county, or part of a county (1), may well plead a ties, hun

custom de non decimando, in respect of this or that particular dreds, &c. where the tithe; as hath been pleaded and allowed in the case of tithe things are milk of ewes, and of tithe of underwood in the wild of Kent, and titheable

in forty parishes in the wild of Sussex. But a single parish may by custom only, but not prescribe de non decimando for particular tithes; nor may any not dejure.] larger district plead a custom absolutely, to have their lands

freed from the payment of all tithes, without any thing in lieu. And lest this allowance of a custom de non decimando to laymen, in any case, should seem to break in upon the general rule, the distinction which hath been laid down is this; that in things titheable by custom only, and not de jure, a county or hundred may prescribe in non decimando generally, for in that case they are discharged, without a custom to the contrary; so that it is but to insist upon the old right, against which the custom hath not prevailed: but for things which are citheable de jure, a county or hundred cannot prescribe in non decimando, no more than a particular person ; for it would be absurd to say, that a hundred shall prescribe in non decimando, where the particular persons of

which it consists cannot so prescribe. (2) Constant It was long a question undetermined, whether a lay impronon-pay priator, as well as a clergyman, be entitled to recover the tithes ment or retainer of without proving payment; or whether a non decimando may be tithes is not pleaded against a lay impropriator : But in the case of Benson v. in itself a Olive, T. 1730, in the exchequer; Pengelly chief baron delivered sufficient discharge

it as his opinion, that a lay impropriator is under no necessity as against of proving payment of tithes unto him. Bunb. 274. a lay im. So in the case of Lady Charlton v. Sir Blundel Charlton, in propriator.] the

the same court; lord chief Baron Reynolds declared it as his opinion, that there can be no prescription in non decimando against a lay rector, any more than against a spiritual rector, and that they are equally entitled to titles of common right; and that it is sufficient for a lay rector to set forth in a bill that he is seised of the impropriate rectory; and if he maketh out his title to that, it will be sufficient, without putting him to the proof of

(1) This privilege extends no farther than to well known divisions of a county or district. Croucher v. Collins in notis, 1 Saund. R. 142. Nagle v. Edwards, 3 Anstr. 702. But a parish (1 Roll. Abr. 652.) or town (2 Inst. 645.) cannot prescribe in non decimando, and this even extends to the case of churchwardens possessing lands by prescription for repair of the church: for though ecclesiastical officers, they are not strictly spiritual persons. 1 Roll. Ab. 653. Wats. Cl. Law, 507. And see the general law of allowing customs derogatory to the general custom of the realm to larger or more important districts only. 1 Inst. 110.6. N. 2. ..

(2) Hick v. Woodson, 1 Ld. Raym. 137. 2 Salk. 655. Carth. 393. Skin. 560. S. C. Gibs. 674.

having received tithes. And to this opinion baron Comyns seemed to assent; but he made a distinction between one who sets up a title to the rectory, and one who entitles himself only to the tithes or any species of tithes within a parish; for in this last case, the plaintiff shall be held to strict proof, not only of his title, but also of the perception of all the tithes he set up a title to; and in s 4361 this present case, the plaintiff having set forth a title in sir Francis Charlton (under whom she claimed) to all the tithes in the parish of Ludford, (except such small tithes as the vicar usually received,) and not to the rectory; and the defendant denying the plaintiff's title to the herbage, and the plaintiff not being able to prove any herbage tithe ever paid, though she attempted to prove an unity of possession for above seventy years, yet the bill was dismissed. Bunb. 325.

And finally, in the case of the Corporation of Bury v. Evans, T. 1739, this point seemeth at last to have been settled; wherein it was determined, that there can be no prescription in non decimando, even against a lay impropriator, (without shewing the reason for it:] and that the presumption which ariseth from a constant non-payment, [or from mere retainer without colour of title,] will not be sufficient, unless the defendant can shew, either that the lands were parcel of one of the greater abbies dissolved by the 31 H. 8. (and then exempt from tithe, as in the last chapter), or that some of the impropriators had released the tithes [by a composition real. (3)] 2 Comyn's Rep. 643. 654. Bunb. 345. (h) [A fortiori, mere nonpayment of a particular species of tithe, (Noragainst

thin or proof that no tithes in kind have ever been rendered within

an ecclesi.

"astical recliving memory, is no answer to a claim by an ecclesiastical rector, tor.) prima facie entitled to tithes throughout a parish (4), but further proof of some immemorial compensation is necessary. (5)

But if a vicar sue for tithes, and the parishioner, being a lay(3) Berney v. Harvey, 17 Ves. 119. Clavill v. Oram, Gwm. 1354. Slade v. Drake, Hobart, 295.

(h) See also 3 Anst. 702. [Where it was argued that a grant of the tithes might be presumed from a lay impropriator ; but the court held that quoad hoc there was no distinction between a spiritual and a lay rector (see Charlton v. Charlton in text), and that no grant could be presumed which would amount to a prescription de non decimando.] And 3 Anst. 945. But in the case of Rose v. Callard, 5 Ves. 186. Lord Eldon said, that he did not entirely agree with the decision of the court of exchequer, that a presumption from non-payment of tithes cannot bar even a lay impropriator.

(4) Nagle v. Edwards, 3. Anstr. 702. 945. Bury case, supra. Heathcote v. Alridge, 1 Madd. R. 242. In Fisher v. Dean, &c. of Christchurch, Bunb. 209. the long contested question, Whether constant non-payment of tithes is evidence of an exemption against a lay ima propriator, was agitated, but not determined.

(5) Adams v. Evans, 4 Pri. R. 16. See White v. Lisle. 437, note (3), VOL. III.

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man, denies that the said tithes are due to him; in such case, unless the vicar shall prove that the tithes in question are due to him by endowment or prescription, he shall fail in his suit: and the reason is, because all tithes de jure, or in presumption of law, belong to the rector; and therefore the vicar shall receive only those tithes which he enjoyeth by custom or prescription, or by

the endowment. 1 Ought. 264. i Vezey, 3. 3 Atkyns, 499. De modo 3. A modus decimandi, commonly called by the single name decimandi. of a modus only, is where there is by custom a particular manner

of tithing allowed, different from the general law of taking tithes in kind, which are the actual tenth part of the annual increase. This is sometimes a pecuniary compensation (6), as two-pence an acre for the tithe of land : sometimes it is a compensation in work and labour, as that the parson shall have only the twelfth cock of hay, and not the tenth, in consideration of the owners making it for him; sometimes, in lieu of a large quantity of crude or imperfect tithe, the parson shall have a less quantity, when arrived to greater maturity, as a couple of fowls in lieu of tithe

eggs, and the like. Any means, in short, whereby the general [ 437 ] law of tithing is altered, and a new method of taking them is

introduced, is called a modus decimandi, or special manner of tithing. 2 Blac. Com. 29.

[But in all cases a modus decimandi presumes a composition for tithes with consent of the parson, patron, and ordinary, before time of memory. (7) But a customary payment in lieu of tithes need not be immemorial; but whether eight years is sufficient, (as in Bennett v. Treppass, Gilb. Exch. R. 191, 192. 4 Bro. P.C. by Tomlins, 650. Bunb. 106.), or what other period is sufficient, the court would not determine. (8) Though where a modus was set up against claim of small tithes in kind, and the vicarage was shewn to have been endowed within date of legal memory, viz. in 1367, an account was decreed to the vicar. (9)

A general custom prevailing throughout a parish or district is called a parochial modus.

A prescription confined to a farm is called a farm modus.

A parochial modus extends to all tithes within a certain district, even over lands inclosed within time of memory, and to

(6) Money payments may be established as a modus, though inva. ‘riably called compositions by the witnesses, where the other evidence is sufficient. Nor is an omission in the parliamentary survey of moduses of any weight, when opposed to actual payment. Driffield v Orrell, 6 Pri. R. 324.

(7) Ord v. Clark, 3 Anstr. 638. 2 Woodd, V.L. 22. 105. Bennett v. Neale, Wightw. R. 331. .. (8) Warden and Canons of St. Paul's v. Morris, 9 Ves. 165.

(9) Scott v. Smith, 1 Ves. & B. 142. See, however, Prevost v. Bennett, 1 Pri. R. 236.

articles that are of modern introduction; a farm modus is more confined, and does not extend either to articles recently introduced, or to newly inclosed wastes or commons. (1) A parochial modus is rather a custom than a prescriptive, and may be good where a prescriptive modus covering particular lands would be bad. (2) In analogy with their differing qualities, evidence of reputation of boundary is admissible in case of a parochial modus ; but not with respect to a farm modus, nor on questions of prescription, except as to right of way: but proof of a fixed payment for a farm during a long period, even without mention of a modus, is evidence of modus, for the payment will be presumed to be

respect to as admissible fering quali

Anding to righodus, ne period, even

must have a

And this may be pleaded by the lord of a manor, for the tithes of his manor; on account of lands of the gift of one who was lord of the manor, and held by the parson and his successors time out of mind; and by a parish or hamlet, for this or that: sort of tithe, by reason of lands enjoyed by the parsons time out of mind within such parish or hamlet: and, lastly, by any private person for his own lands, or part thereof, in consideration of a certain sum of money or other recompence. Deg. p. 2. c. 16.

4. A. But to make any of these a good custom or prescription, Modus it must have the several qualifications following: As, first, every mus

reasonable modus must be supposed to have had a reasonable commence- commen ment (4); and in every prescription de modo decimandi, it is to ment, as be intended the rate tithe was the full value of the tithe at the from real

nt compon time of the original composition; for it cannot be presumed, that sition. the parson, patron, and ordinary would make a composition to the prejudice of the church ; [or, on the other hand, that a particular district would have encumbered itself unnecessarily, though that has been sometimes countenanced as a defence to alleged rankness of a farm modus (5)]; and if the modus do not now reach the value, it is to be intended, that either the tithes are improved, or else that money is now become of less value, which makes the present inequality. Deg. p. 2. c. 16. By Composition real is meant, where the present incumbent of Composi

tion real. (1) Scott v. Algood, Gwm. 1369. Moncaster v. Watson, 3 Burr. 1375. Heaton v. Cooke, Wightw. R. 282. Bishop v. Chichester, Gwm. 1323.

(2) Bennet v. Read, I Anstr. R. 323. 328. n.

(3) White v. Lisle, 4 Madd. R. 214. And see farther as to trial of farm modus, infra, 454.

(4) That is, that the composition at the time of making it was fai and equitable, though it may appear different at present. Chapman v. Monson, 2 P. Wms. 573. but it need not be shewn. S.C. infra in text.

(5) Marsham v. Huxley, Gwm. 1499. Atkyns v. Lord Willoughby de Broke, 2 Anstr. 397.

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