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 according to right. (3)]

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.

reasonable

commence

compo

4. A. But to make any of these a good custom or prescription, Modus it must have the several qualifications following: As, first, every must have a modus must be supposed to have had a reasonable commencement (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 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

(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, 1 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.

tion real.

any church, together with his patron and ordinary (6), do agree by deed under their hands and seals, or by fine in the king's court, that such lands shall be freed and discharged of the payment of all manner of tithes in specie for ever, paying some annnal payment, or doing some other thing to the ease, profit, or advantage of the parson or vicar to whom the tithes did belong. (7) And these real compositions have ever been held and allowed here in England, to be a good discharge of the payment of tithes. (¿) And from these real compositions it is intended, that all prescriptions de modo decimandi first took their rise and beginning; though it is to be doubted, that most of them at this day have grown from the negligence and carelessness of the clergy themselves. [2 Inst. 490. Deg. p. 2. c. 20.] [and semb. a defence by composition may be set up on the failure of modus. (8)]

But now, since the statute of the 1 El. [c. 19. §5.] (in the case [438] of archbishops and bishops,) and the statute of the 13 El. [c. 10. §3.] (in the case of all other ecclesiastical corporations, sole and aggregate,) it is agreed on all hands, that no real compositions, any more than alienations, can be made; since all grants are thereby expressly restrained, and made void, which are not according to the tenor of those statutes. And the only moduses that can grow now, must be from the inadvertency of the clergy, acquiescing in the self-same agreements from one successor to another. Gibs. 675, 676.

Where a real composition hath been made, if the lands discharged thereby be transferred or granted to another, the feoffee o grantee shall have the benefit of it. Gibs. 675. (k)

But it is not now necessary to shew, that the modus had at first a reasonable commencement; for these moduses having been from time immemorial, none can know but that there were such circumstances in those ancient times, as might have made such a composition reasonable, though at present they may not be discoverable. It is enough to satisfy us at this great distance of time, that the parson, patron, and ordinary, before the restrictive statutes, might bind

(6) See page 439 c.

(7) By reasonof some land or other real recompence given to the parson in lieu and satisfaction thereof, 2 Inst. 490. 13 Rep. 40.) or in consideration of a recompence made to the parson or vicar out of other lands. Ekins v. Dormer, 3 Atk. 534. And a Real composition' does not mean a security for payment of the composition, but land substituted in lieu of tithes. Atto. Gen. v. Bowles, 3 Atk. 809.

(i) [2 Inst. 655. The agreement must have been made between the reign of Richard I. and before 13 Eliz. Bennett v. Neale, Wightw. R. 331.] See Ekin v. Pigot, 3 Atk. 298. These agreements are also known to the ancient canon law. X. 1. 36. 2.

(8) Leech v. Bailey, 6 Pri. R. 508. but see contra, 4 Pri. R. 608. Wightw. R. 324. infra, 439. note (8).

(k) Sir W. Jones, 369.

the revenues of the parson; and that all these moduses must have had their commencement from an instrument signed by the parson, patron, and ordinary; but there can be no colour to say, that because such instrument in so great a length of time hath been lost, therefore the modus shall be lost also. Indeed, so far the law hath gone in favour of the church, as that if the instrument which the parson, patron, and ordinary had given to a layman, owner of such a farm, to discharge the farm of all tithes, (though this would be good while the instrument could be shewn,) should be once lost; this being a privilege in non decimando, the privilege would be lost by the loss of the deed. [ 439a ] [Chapman v. Monson,] 2 P. W. 573.

tion real

not to be

[Though immemorial custom is in general evidence even for [Composi presuming deeds against the crown, or sufficient for a jury to presume an agreement beyond time of memory in support of a presumed modus decimandi; yet it is settled that a composition real cannot from usage.] be established by usage alone, without producing the deed by which it was created, or proving by some evidence referring to such deed, that it once existed independent of mere usage. (9) For the bare fact of a parson having been in possession of less than what is due to him, or of that which is due in a less beneficial manner, is not of itself a ground for presuming a composition real. (1) Nor in absence of that evidence, will it be proved by reputation of such an agreement having existed as the origin of the exemption claimed, though corroborated by non-payment of tithe for the district claiming the exemption. (2) Nor can a composition real be presumed from the mere fact of pecuniary payment, though from an immemorial period anterior to 13 El. without like proof. If there is no other evidence of composition than mere non-payment, the legal inference and presumption is, that the composition originates without deed. (3)

This rule of non-presumption in favour of the clergy, viz. that a

(9) See Heathcote v. Mainwaring, 3 Bro. C. C. 217. citing Hawes v. Swain, Exchequer sittings after T. 1789, now reported 2 Cox. R. 179. Ward v. Shepherd and Others, 3 Pri. R. 608. Bennett v. Neale and Others, Wightw. R. 331–363. Bennett v. Skeffington, 1 Dan. R. 10. Sawbridge v. Benton, 2 Anstr. 372. Startup v. Dodderidge, Gwn 587. Bury (Corporation) and Wright v. Evans, 2 Gwm. 757. Com. R. 643.

(1) Knight v. Halsey in error, 2 B. & P. 206. 7 T. Rep. 86. S. C. (2) Chatfield v. Fryer, 1 Pri. R. 253. Bennett v. Skeffington, 1 Dan. R. 10. 4 Pri. R. 143. S. C. And see Dartmouth v. Roberts, 16 East, 338. Bennett v. Neale, Wightw. R. 324. Harwood v. Sims, id. 112.

(3) Estcourt v. Kingscote (1819), 4 Madd. Ch. R. 140. Robertson v. Appleton, 3 Gum. 1101. 4 Wood's Dec. 10. (cited 2 Anstr. R. 375. Wightw. R. 332, 3 Pri. R. 615.) Smith v. Goddard, 3 Gwm. 1102. Bennett v. Skeffington, 4 Pri, R. 143. 1 Dan. R. 10. S. C. and notes

composition real having its commencement by grant within time of memory, such commencement must be shewn to have been by deed, and cannot be presumed from uninterrupted usage (as a modus may), originated in 1777 in the case of Robinson v. Appleton. (4) It has been much impugned by Mr. Baron Wood in the cases above cited. The support of the rule is derived from the maxim, nullum tempus occurrit ecclesiæ; for if a defence of composition real was to be supported by parol evidence of usage, every bad modus might be made a good composition real (5); and no modus would exist or ever would be pleaded quá modus, but as composition real only: and the objection of rankness would be got rid of on all occasions, while the property of the church might be alienated on the ground of prescriptions of 100 years only, arising since the time, and notwithstanding the restraining statutes of Elizabeth. (6)

66

The following passage in Bennett v. Neale, Wightw. R. 359. may elucidate the difference between a modus decimandi and composition real, in which originates the above rule. "Com"position real has always been considered from the earliest "times as a totally distinct head of defence from a modus deci"mandi, which is a particular mode of taking tithe: but in "which case the rector has always a title to the tithes, though " he must take it by a mode that is generally in the shape of a pecuniary payment; yet as a pecuniary payment, it is tithe. "A composition real according to the definition given of it by "Burn, which is perfectly correct, and is taken from ancient "writers, is a discharge from tithes the parson who has a com"position real has no longer the tithes; but he has an equiva"lent for them: he parts with all his tithes, and it is a discharge "from them by a pecuniary payment." Thus in Dickinson v. Smith (7), a composition for tithe being a personal demand, and not a lien on the land, the court refused a motion for its being paid out of a fund in court paid in by the sequestrator. But if tithe had been due in respect of the produce of the land taken possession of by the sequestrator, such a motion would have been correct, for he could not justify taking it without paying the tithe. Again, where a defendant has set up a defence of composition real, he cannot afterwards rely on its being in fact a modus, for such a defence is double and too uncertain. (8)

(4) Gwm. 1101. Wightw. R. 348.

(5) See Phill. on Ev. 3d ed. 124. Gwm. 1345. Hawes v. Swaine, 4 Wood's Dec. 313. Wightw. R. 349. et seq.

(6) See Ward v. Shepherd, 3 Pri. R. 625. 608.

(7) 4 Madd. R. 177.

(8) Ward (Clk.) v. Shepherd and Others, 4 Pri. R. 608. Bennelt v. Neale and Others, Wightw. R. 324. Wood B. dissentiente. Leech v. Bailey and Others, 6 Pri. R. 508, 509. quotes Bishop v. Chichester,

Since the statute of 13 El. for preventing the alienation of ecclesiastical estates, no composition real can be made, and those appearing to be of a later date are invalid. The length of enjoyment, which in other cases is the best possible title, serves here only to weaken the claim of exemption from tithes, as the difficulty of tracing its origin is increased. (9) So that though the law allows of a layman's being discharged by grant, when it appears; yet if it appears not, it is presumed that it never was, because of the dangerous consequences of presuming the contrary (1), and the law, says lord Coke, has great policy therein for that laymen (to the trial of whom all prescriptions are to be put) will rather strain their consciences for their private benefit, than yield to the church the duties that belong thereto, and the decay of the revenues of men of holy church will in the end be overthrown. (2)

;

But the consent of the patron and ordinary may be given by several deeds, the actual production of which is not necessary if other proofs warrant a presumption that they once existed. (3) It may be inferred from length of time (4), or where there has been no dispute on the subject within living memory, with clear evidence of continued perception of tithes from all time which written evidence can reach, according to the copy of a grant produced. (5) In this latter case, though there was evidence enough to conclude that the composition real had been entered into prior to 32 H. 8. c. 7. which gave to laymen the right to sue for and recover their tithes, which by common law they were unable to do, C. B. Richards said, That had it been necessary to presume that the composition real was made subsequent to 32 H. 8. he should have felt himself bound to presume that it had been re-executed and re-assented to after that time.]

Upon the whole, no modus can be established at this day, but

by act of parliament. An agreement by parson, patron, and ordinary, confirmed and established by a decree in equity, can only bind the parties thereto, [and not the succeeding incumbent]; because no man's property can be affected but by the law

4 Gwm. 1329. contra: but the inclination of the Chief Baron, seemed against it, as a practice of modern introduction.

(9) Lord Petre v. Blencoe, 3 Anstr. R. 945. Rose v. Calland, 5 Ves. 186.

(1) Slade v. Drake, Hob. 297. Jennings v. Lettis, Gwm. 952. Nagle v. Edwards, 3 Anst. 702. Meade v. Norbury, 2 Pri. R. 338. Fanshaw v. Rotheram, 1 Eden. R. in notes, 303.

(2) Bishop of Winchester's case, 2 Rep. 44.

(3) Sawbridge v. Benton, Gwm. 1397. 2 Anstr. R. 672. And see Read v. Brookman, 3 T. Rep. 151. Chaplin v. Bree, 2 Rayner, 643. (4) 2 Anstr. R. 379.

(5) See Ridley v. Storey, 1 Dan. Exch. R. 168. 157.

[Modus how established sent day.]

at the pre