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possible to say, what the value of the lands was at the time of this composition, and reasonable to think a proper valuation was then made. — For the plaintiff it was answered, Where a modus appears so large, that it is impossible it could be time out of mind, the court will always destroy such a modus upon the face of it. Every modus presumes an original agreement before the disabling statutes, by parson, patron, and ordinary. The commencement then must be presumed consistent with right reason; and the court will not presume that the parishioners (in whose favour all these contracts are) made such a composition as was of more value than the tithes. The payments must be always in money: this being pasture tithe, which is always pecuniary, cannot be specific, and the only tithe in the kingdom which is not specific. It is not to be conceived, that 9d. would be paid, if the real tithe did not amount to half that. The value of an acre, to support this as a reasonable composition, at the time must have been 7s. 6d. So high a modus creates a strong presumption, that it was not made beyond time of memory. The law fixes that to a certain period in the time of king Richard the first, since whose death it is above 560 years. This then must be presumed an agreement before that time to pay 9d. an acre. In fact, in the time of king Hen. 8. these lands were valued at 2s. an acre; as appears from several records, particularly from a survey then taken, now produced out of the augmentation office. The other objection, and which destroys the modus on the face of it, is from the exception of tithe of hops; which shews it a composition coming in queen Elizabeth's tinie; though perhaps they existed here a little before, there being a statute in the time of Hen. 8. prohibiting them as a venomous weed. It could not then be an agreement before time of memory. The exception must be taken entire with the modus; for the court never [ 452 ] severs a modus, or considers one part as good, and another as bad. Hops being alleged as part of the description, it is thereby as much felo de se as if laid particularly and precisely for hops, which is never allowed. — By the lord chancellor Hardwicke : This case is of very great consequence, the marsh extending through a vast tract of country. The court certainly ought to support the rights of the church, and not to allow any modus or customary payment that by the rules of law is not to be supported. At the same time the court ought not lightly to overturn customary payments, that have prevailed for a great tract of years, which is commonly called time out of mind, or the memory of man; though I do not mean strictly according to the notion of law, before the time of king Richard the first. There are two objections against this modus; one is, that this payment of 9d. an acre cannot have subsisted time out of mind, because 9d. an acre must be much above the value of the tithe at the time this

modus must be supposed to commence; which the law of England, by a pretty extraordinary stretch (and which, I believe, no other country does), makes from the transportation of king Richard the first to the holy land. The other is, that this modus cannot have subsisted time out of mind, because there is an exception of a product and culture, which was not and could not be in use at the time when it was supposed to commence. And this objection hath in it something very material; for hops are always allowed to have been introduced in modern times, that is, modern in respect of long antiquity. They began to be used and propagated in queen Elizabeth's time, and existed in this kingdom some time before: they were here, as 'tobacco is here, planted for curiosity and in small quantities. It is not possible there could be such an exception at the commencement of the modus; but the question is, whether the making this exception overturns the affirmative part of the modus. And I am of opinion it doth not. Suppose the agreement was to pay 9d. an acre for all small tithes of this land, except such small tithes as shall be afterwards introduced, that would be certainly a good agreement. Then, instead of laying it in those general words, they have specified it with such a sort of product, as these lands probably will be tilled with. And it is too much to lay such weight on this objection, as to overturn the modus on that ac

count. The more material objection is, whether the modus is [ 453 ] not too rank. It is insisted upon as too high in point of value,

and therefore that the court is bound to take notice of it, and ought to over-rule it. That doctrine hath undoubtedly prevailed in several cases; but most commonly as to the value of particular things for which the modus hath been set up, as where it is so much for a sheep or lamb, or a particular kind of product, the value of which may be shewn at these times : but it may differ as to a modus set up as to the value of lands, because several incidents and accidents may attend that; the alteration of traffic or commerce, or of the culture of land, either improved or falling in value by accident, makes such a modus more uncertain than in respect of the value of a particular kind of product, as calves, sheep, lambs, and things of that kind. (4) Therefore, though this objection is taken in point of law for the judgment of the court, yet the court doth not always proceed as bound to determine in that way, but hath considered it as a matter of fact proper for a jury. And this being a case of so much consequence, I shall send it to a trial at law. And he directed an issue accordingly. 2 Vezey, 506. [And in Mitchell v. Neule (5) it is said, that the former practice in the court of

(4) And see O'Connor v. Cooke, 6 Ves. R. 672.
(5) 2 Ves. 680. M. 1755.

tithes of that. For the whole rectand the whole de but 481. a yea

or the value of a return made ed, as exhibits, til

exchequer, of directing an issue to try a modus in the first instance, is now altered ; but not in every case.]

In Ekin v. Pigot, March 3, 1745, a bill was brought for tithes in kind of the manor of Dodeshall in the parish of Quainton. The defendant insists upon a modus of 481. in lieu of all tithes of that manor. For the plaintiff it was insisted, that it was too rank; for the whole rectory was worth but 33l. a year in Henry the eighth's time; and the whole demesne lands of that manor, in queen Elizabeth's time, were worth but 481. a year: so that the modus then would have been just as much as the manor itself. And the plaintiff proved, as exhibits, the value of the first fruits from a return made by the augmentation office; and for the value of the manor, an inquisition post mortem. By the lord chancellor Hardwicke : There is no person more unwilling than I am to set aside such payments in lieu of tithes; but there must be some ground of law upon which to support such payment. The objection is, its being too rank a modus, and consequently that it could not be time out of mind; for it appears that manor is now but 801. a year; and according to the natural improvement of lands from Henry the eighth's time, it ought to have been ten times as much, on account of money sinking in its value, and lands rising in theirs. The returns from the first fruits office, and the inquisition post mortem, though they are not conclusive evidence, yet are sufficient upon the circumstances of this case; because the defendant has not produced any evidence 454 7 to contradict it. Taking all the evidence together, this appears to be nothing more than a composition upon agreement, which parsons have submitted to in succession (6) from time to time, and is merely a personal payment; not a composition real, which is some charge given to a parson upon lands, under a deed to which himself and the patron and ordinary are parties, and of a different nature from this. 3 Atk. 298.

[Rankness is only evidence against the immemoriality or a antiquity of the payment, and forms no objection in point of law Effect of to the modus, if it can be inferred to have existed. So the mere rankness, quantum of the sum is not to be taken as decisive evidence of the when given

in evirankness of a modus ; but it must also be considered whether it dence. has been immemorially paid, notwithstanding its magnitude. (7)

The wording of the question sent by Ch. Bathurst, for the opinion of C. P. in Pike v. Dowling (8), was thus, “ Whether a

modus of 2s. 6d. for every tenth lamb, to be paid on 5th April “ in each year, is a good modus, or not?” The court certified,

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were of which ince of 11

[Power of courts of equity to

to decide on rankness without a jury.]

that as the case admitted the existence of the modus in question from time immemorial, which they conceived to be a question of fact (9), they were of opinion that there did not appear any reason why this should be considered as a void modus in point of law, as for uncertainty, inequality, &c. The question of rankness was therefore precluded (1), because the question asked furnished its own answer unavoidably. (2) It however seems now generally allowed, that as the modus is a question of fact and not of law (3); so rankness is only matter of evidence relating to such modus (4), and as such a question of fact only. (5)

Upon the power of courts of equity to decide on this fact of rankness without the intervention of a jury, difference of opinion has existed among the judges of these courts. The decisions have upheld the principle, that as the law now stands, « a court of equity shall decide on facts as well as “ on law, if they have sufficient evidence of the fact to satisfy 66 their minds.” It is nothing to say (proceeds C. B. Richards) that the question of modus is a question of fact ; because if it is such, we are alike bound to decide it, if the evidence is sufficient to enable us to do so. It is like every other fact, and what is called rankness is only matter of evidence. (6) Again, lord Eldon desired it to be understood, that after then about forty years' experience in the profession, he took it to be quite clear, that a court of equity in cases of this sort, as well as with respect to all cases where matters of fact are in question, has a right itself to determine on the fact without the intervention of a jury. “ If “ the evidence which is before a court of equity is satisfactory on 66 the fact, I never can admit that that court is bound to send 66 any such case to a jury.” (7) Again, C. B. Richards has since said, it is of the essence and constitution of equity to decide at once on facts, except in one or two instances; as that of an heir at law disputing the validity of a will, and a rector suing for

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(9) O'Connor v. Cooke, 8 Ves. R. 539.; and see per Wood B., Wightw. R. 289.

(1) Id. 316.
(2) Id. 323.
(3) Per Wood B. Wightw. R. 288. 4 Pri. R. 392. 415.
(4) 4 Pri. R.415., per Richards C.B.; and see supra, 449., and note.
(5) Per Lord Eldon, in O'Connor v. Cooke, 8 Ves. 539.
(6) 4 Pri. R. 415.; see also 2 Bla. R. 1259. per De Grey."

(7) Bullen v. Michell, 2 Pri. R. 466. 469. (1816.) In this case it was in effect decided that the satisfaction of the majority of the judges of the exchequer is the satisfaction of the court. See Minor Canons of St. Paul's v. Morris, 2 Pri. R. 418. ; id. 467. cited by Lord Eldon; and 2 Pri. R. 25.

tithes. (1) As the law now stands, a court of equity should decide on facts as well as on law, if they have sufficient evidence of the facts to satisfy their minds. (2)

Before these final assertions of the power of equity on this point there were cases which it was said it would be perfectly useless and nugatory to send to a jury, and so notoriously rank from their internal evidence, that a court of equity would not direct an issue on them, but would overrule the claim without sending them ot a trial at law. (See 2 Bro. C. C. 163., &c.) Thus in Heaton v. Cooke (3) three barons agreed in deciding that moduses of Is. 6d. and 2s. per acre for tithe hay were rank: arguing that it was the province of the court to determine originally on matters of fact of this kind, and to give the party the benefit of that opinion without sending him to a jury. On the other hand, B. Wood, differing in toto, said that rankness was merely a species of evidence to negative the probability of a modus, and as such ought to be submitted to a jury, in his opinion the proper and only constitutional tribunal for trial of a prescriptive modus. It was also to be remarked, that in all appeals from the exchequer to the house of lords when the court had refused to grant an issue on moduses, that house had uniformly reversed the decree of the court, and granted the issue. (4) Chapman v. Smith, supra, decided by lord Hardwicke, is to the same point; the validity of a modus of 3d. for every lamb, payable on St. Mark's day, or as soon after as demanded, was sent to be considered by a jury, and the decree was affirmed by the house of lords. (5)

This discretionary power in courts of equity of deciding on moduses or sending them to be tried by a jury, has, however,

· (1) Mytlon v. Harris, 3 Pri. R. 25., Bullen v. Michell, 2 Pri. R.423.
399. And see 18 Ves. 175. For if a rector who has a primâ facie title
to the tithes of a parish sües, (and is not improperly joined, it is an
established rule, that if a modus is set up against his claim, he has a
right to have the question tried on an issue before a jury at law. Wil-
liams v. Price and others, 4 Pri. R. 156. But vicars are by no means
entitled to issues as a matter of course. Per Richards C. B. in Petch
v. Dalton, 6 Pri. R. 239. In questions between rectors and vicars,
the former cannot claim an issue as a right, but it is granted or not,
according to the instrument of endowment, or the proof of perception
adduced by the vicar as founding presumption of anterior endowment.
See Dorman and others v. Curry and others, 4 Pri. R. 114. Parsons v.
Bellamy and others. Id. 200. Petch v. Dalton, 6 Pri. R. 238. Per-
ception and long enjoyment is the vicar's common-law proof. Per
Graham B. in 2 Pri. R. 450.
· (2) Layng v. Yarborough, 4 Pri. R. 415.

(3) Wightw. R. 281.
(4) Wightw. R. 289. See e.g. Ekins v. Dormer, 3 Atk. 534.
15) Webb v. Giffard, 4 Bro. P.C. 212. Gwn. 708.

VOL. III.

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