Obrazy na stronie
PDF
ePub

necessary to express the day of payment of a modus insisted on, but this may be supplied by evidence, so as to be a foundation for the court to direct an issue at law to try the modus; but in a cross bill to establish a modus, a day must be expressly alleged, otherwise it will be fatal. Bunb. 328. (3)

And many moduses have been set aside, in regard that no day [ 447] of payment was set forth by the defendant. As in the case of Whitehall and Offley, T. 5 G. Mr. Offley had sued Whitehall in the spiritual court for tithes. Whitehall moved for a prohibition, and suggested a modus, but set forth no day of payment. For want of which the court was of opinion it was naught.

E. 8 G. Goddard, rector of Castle Eaton in Wilts, v. Kable. The defendant insisted upon several moduses; viz. 3d. for a milk cow, 3d. for a lamb, 3d. for a colt, 1d. for a garden, and the like: but they were all set aside, in regard no time for the payment thereof was ascertained by the defendant. [Bunb. 105.. (m)]

T. 8 G. Woodford, vicar of Ebeshame, alias Ensom in Surrey, against Crosse. Modus, 4d. a cow for milk and calf, 2d. for a dry beast, 3d. for a lamb, and so on; but no day of payment set forth by the defendant: Set aside for the same reason.

Penrice, vicar of Dodderhill in Worcestershire, versus Dugard. Modus 47. 10s. for all small tithes arising on an estate called Impney: Set aside, because no day of payment was set forth by the defendant in his answer.

Pemberton, vicar of Belchamp St. Paul's, in Essex, against Sparrow and others. Several moduses set aside for the same reason. [Bunb. 105.]

T. 9 G. Corpus Christi v. Vincent. Modus, 1d. for a young milk cow, and 2d. for an old milk cow: Set aside for the same rea

son.

And the reason these decrees go upon is, that tithes in kind being a provision made by law for the clergy, which becomes due at a certain determinate time, and which if not then set forth are immediately demandable, shall not be taken from them by an pounds for a farm of eighty pounds per annum, in lieu of tithes (Edge v. Oglander, Gwm. 536.);- have all been adjudged certain, valid, and good: four-pence for every cottage and garth held good; so one penny for every strip cow; four pence for every foal; two shillings and sixpence for every tenth lamb, in lieu of the tithe of such ten lambs: dub. Graham B. as to the two last. Layng v. Yarborough, 4 Pri. R. 383.; but Selby v. Clarke, 1 Ld. Raym. 699., is acc. to the last modus. (3) S. P. held in Bennett v. Treppass, H. 1722, 4 Bro. P. C. (ed. Tomlins,) 650.

(m) Vide also Phillips v. Symes, Bunb. 173., where a modus was set aside, because stated to be payable at Easter or otherwise, when the sheep shall be sold. But in Wolferston v. Manwaring, Bunb. 280., a modus of 2d. per acre, for 18 acres, was established after verdict for defendant, although no day of payment was set forth, nor by whom.

uncertain payment which becomes due on no determinate day, and which they cannot know when to demand, or go about to receive, if it be withheld. Besides that such an uncertainty lays a foundation for many disputes, as in the case of the death of an [448] incumbent, where tithes are paid in kind, all tithes severed before his death go to his executor, the rest to his successor; but if a modus to be paid on no certain day should be allowed, no one could determine in that case, whether it should go to the executor of the preceding incumbent, or to the successor.

But the courts of late have not been so strict, as to the limiting a precise day of payment. In the case of Carte and Ball, May 13, 1747; a bill was brought for a subtraction and account of tithes, against the inhabitants and occupiers of Hinckley in Leicestershire. The defendants insist upon a contributory modus of 17s. in the whole, paid for the hides, in lieu and satisfaction of all tithes: viz. 5s. 8d. for the part of hides in the occupation of such a person; 4s. 4d. for the part in the occupation of another; and 7s. for the part in the occupation of another. By the lord chancellor Hardwicke: Two objections have been taken by the plaintiff; that it doth not express the time when it is to be paid, nor enumerate the persons by whom it is to be paid. As to the first, in the court of exchequer, if a particular time was not laid, that court formerly would have over-ruled the modus, and not gone into the merits; but more lately they have very properly let in a greater latitude of proof, and it is sufficient if it is laid at a particular time, or thereabouts. But the second is what I lay stress upon, that it is not said by whom it is to be paid: and I do not know any case in the books, or in experience, where it is not al'leged to be paid by somebody; and it is very reasonable it should be said by whom, because the parson may then be sure to whom he must apply, or against whom he may have a remedy for his tithes. This cannot be supplied by saying, that in other parts of the answer they have shewn the 17s. have been paid by those persons who have held these lands, for that may be accidental: and though it hath been said this court does not take customs so strictly certain as courts of law; yet this court requires customs to be substantially laid. If before the court of exchequer, where cases of this kind are more frequent, it would have been overruled at once. 3 Atkins, 496. [1 Ves. R. 3.]

And in the case of Richard and Evans, Oct. 26, 1747; the plaintiff, as rector, brought a bill for payment of tithes in kind: the defendant, as owner of the farm, brought a cross bill for establishing a customary payment of 77. a year, in lieu and satisfaction thereof. For the plaintiff it was insisted, that this modus is neither well laid nor proved, nor is the day of payment cer[449] tainly specified; for want of which a modus was held not good in point of law in the exchequer, T. 5 G., because the time of payment of a modus ought to be as certain of the tithes, in place of

which it is substituted; which, as to the fruits of the earth, is immediately on the first severance; and a custom uncertain is no custom. By the lord chancellor Hardwicke: As to the general question, whether it is necessary to lay and prove a particular day of payment, the case in the exchequer was certainly so determined; but I remember it gave general dissatisfaction in Westminster-hall and abroad, as too nice to require the proof of a particular day; and it hath been since adjudged to the contrary, that on or about is, sufficient: so that they have left off taking that exception in the exchequer. 1 Vezey, 39.

And it seemeth now to be held, where an annual modus hath been paid, and no certain day for the payment thereof is limited; that the same shall be due and payable on the last day of the year. [But in 1810 (4) prohibition was denied to the spiritual court, for rejecting a modus set up there of 1d. for every turkey laying eggs, or of every tenth egg, &c. in lieu of tithe of turkeys, at the option of the vicar; such modus not ascertaining any certain time when the money payment in lieu of the eggs was to be made, in case the option was made to take it in money; and lord Ellenborough said, That the chancellor himself, in Richard v. Evans, assumed that it was necessary that there should be some fixed time of payment, though in pleading it was not necessary to lay the precise day; and laying it on or about such a day was sufficient. But that without some fixed time it could not be known to which of two vicars, in case of a change, the money payment would belong.]

9. A modus must be ancient: and therefore if it is any thing near the present value of the tithe, it will be supposed to be of late commencement, and for that reason will be set aside. [Whenever a modus runs high, says lord Holt, it is a strong presumption there is no modus. (5)] For all these moduses proceed upon a supposition of an original real composition having been actually made; which being lost by length of time, the immemorial usage is admitted as evidence to shew that it once did exist, and that from thence such usage was derived. Now time of memory hath been long ago ascertained by the law to commence from the reign of Richard the first (6) [A. D. 1189]: and any custom may be

(4) Roberts v. Williams, Clerk, 12 East. Rep. 33. (5) Startup v. Dodderidge, 11 Mod. 60.

(6) 2 Inst. 238, 239. This rule was adopted, when by the statute of West. 1. (3 Edw. 1. c. 39.) the reign of Rich. I. was made the time of limitation in a writ of right. But this period in a writ of right hath been since reduced by the statute of 32 Hen. 8. c. 2., to sixty years. It seems somewhat unaccountable, that the date of legal prescription or memory should still continue to be reckoned from an æra so very antiquated. [See Litt. §. 170. 34 H. 6. 37. 2 Roll. Ab. 269. pl. 16., cited 2 Bla. C. 30. note (u).] But no inconvenience re

Must be ancient,

[and ergo, not rank.]

[ 450]

destroyed by evidence of its non-existence in any part of the long period from his days to the present. Wherefore, as this real composition is supposed to have been an equitable contract, or the full value of the tithes at the time of making it, if the modus set up is so rank and large, as that it beyond dispute exceeds the value of the tithes in the time of Richard the first, this modus is felo de se, and destroys itself. For as it would be destroyed by any direct evidence to prove its non-existence at any time since that æra, so also it is destroyed by carrying in itself this internal evidence of a much later original. Blac. Com. b. 2. c. 3. In the case of Lay field, rector of Chiddingfold in Surrey, and Delop, H. 1697, the defendant insisted on a modus of 3d. for each lamb. The court held, that was too much, and could not be; for that a lamb was not then worth 25. 6d. in that country.

So in Benson and Watkins, H. 3 G. The following moduses; viz. 5s. an acre for the tithe of winter corn, 4s. an acre for summer corn, 2s. 6d. an acre for upland meadow, and 3s. an acre for lowland, were set aside as too big.

Lloyd and Small, 4 G. The defendants insisted on several moduses for all small tithes arising out of their respective farms. But it appearing by their answer, that their small tithes in kind, in the year demanded by the bill, did not amount to more in that year than the pretended moduses, the moduses were set aside.

T. 7 G. Franklin and Jenkins. The bill was brought by the parishioners of Farnham in Hampshire, against the vicar and tenant of the impropriator there under the hospital of St. Cross, to establish several moduses; some of which were set aside as too big; and among the rest, a pretended modus of 6d. for the tithe of a calf.

[A customary payment of 2s. payable by the occupiers of inclosed arable lands in lieu of the tithes of every acre thereof, when sown with corn and grain; 1s. 6d. an acre for tithes of grain reaped on common arable fields (7); 4s. an acre for every acre of wheat, and 2s. for every acre of lent corn reaped (8); 1s. for every tenth fleece, pig and goose, in lieu of the tithe of the ten fleeces, &c. (9); 1s. 6d. and 2s. an acre for tithe hay (1);— was held rank, and have been dismissed by the court at once, as being prima facie rank, and therefore void moduses: The last modus sults from the rule as [applied to moduses]: for it is not necessary to produce evidence that a custom has existed during all this space of time; but a proof of its existence for a comparatively short space of time is evidence of immemorial usage, if nothing appear to the contrary.

(7) Gale v. Carpenter, Gwm. 945. 3 Wood's Dec. 173.

(8) Hulse v. Monk, Gwm. 960.

(9) Layng v. Yarborough, 4 Pri. R. 383.; and see Torriano v. Legge, Rayner, 521.

(1) Heaton v. Cooke, Wightw. R. 281.

was also bad, as not providing for the intermediate numbers. (2) So 1s. for each milch cow (supposed to be above half the value of the milk at the time the modus probably commenced); 6d. for every calf killed and sold (3); 1s. for every lamb (4); 4s. for every ten lambs fattened; 4d. each for all under five, and for all above five and under ten, 4d. each on the shearing day, and 3d. each for all other lambs bred in the parish, in lieu of the tithes of such lambs (5); 3d. for every lamb (6); 47. 10s. per annum for a farm of the yearly value of 30l. (7); 2s. in the pound on the improved yearly rent (8); - have been dismissed in like

manner.

On the other hand, 1s. per acre for low meadows, and 8d. an acre for high meadows, have been held good moduses (9); though it was afterwards said, that had the moduses been for tithe hay only, or the tithe arising on the land, 1s. would have been too rank. (1)]

And the reason these decrees go upon is this: That the value of money being much greater at the time when all moduses are presumed to have begun than it is now, a modus near the value of the tithes at this day must have been at that time a great deal more; and it is not to be supposed, that the parishioners would at any time give so much more than the value of their tithes. [But a modus of 1s. for each day's math has been adjudged good, the C. B. observing, that in considering such a sort of modus it was not fair to look at the mere value, and from comparative reasoning to determine the validity of the custom; as agreements of this kind are not similar to other human transactions in matters of contract, and it is very probable that motives besides those of interest operated on the mind of one of the contracting parties, and determined him to make a very beneficial bargain to the parson. (2)

A distinction prevails between a modus the validity of which depends on the value of things before time of memory, and one which regards the value of land at that period. The inference

(2) See 4 Pri. 407. 397.

(3) Franklyn v. The Master, &c. of St. Cross, Bunb. R. 78. Leathes v. Newitt and others, 4 Pri. R. 369.

(4) Drake v. Smith, 1 Dan. R. 115. 5 Pri. R. 369.

(5) Wood v. Harrison, 3 Wood's D. 250. Gwm. 970.

(6) Bishop v. Chichester, 4 Gwm. 1316. But see Webb v. Giffard, Gwm. 708.; and Drake v. Smith, Bertie v. Beaumont, 2 Pri. R.303. Judgment of Richards C. B. in Layng v. Yarborough, 4 Pri. R. 414. (7) Kennedy v. Goodwin, Bunb. 301. 2 Wood's Dec. 305.

(8) Startup v. Dodderidge, Salk. 657.

(9) Pole v. Gardiner, 1 Bro. P. C. 214. Gwm. 601.

(1) Bate v. Hodges, Bunb. 125. See as to lambs, Askew v. Greenhill, 2 Pri. R. 314. n.

(2) Markham v. Huxley, Gwm. 1499.

« PoprzedniaDalej »