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M. 49 G.3. French v. Trask. In this case the plaintifflibelled the defendant in the ecclesiastical court for tithe in kind. A prohibition was moved for upon an affidavit, that the defendant had “ answered on oath, or pleaded to the said libel in the said court," a modus in lieu of tithes, which he had duly tendered to the rector, who refused to accept it. It was objected, that the defendant had only put in an answer of a modus in the court below, but had not regularly pleaded it, and therefore the application came too soon. Court said, that [this being before sentence] there must be a prohibition in this case, for it appears that there is nothing to try in the court below but the modus insisted upon in the defendant's answer. 10 East's Rep. 348.

But if in the trial of a modus, the defendant permits the spiritual court to proceed to sentence, he is then too late to come for a prohibition; because it is only for defect of trial, and not for defect of jurisdiction : but a man is never too late for a prohibition, where it is for defect of jurisdiction. Bunb. 17.(r) Stainbank v. Bradshaw, 10 East's Rep. 349.

Rotheram v. Fanshaw, March 25, 1748: On a suit instituted in the ecclesiastical court for subtraction of tithes, the defendant there, without pleading any discharge, brings a bill to establish a modus. The answer to the bill does not admit it. And he now moved for an injunction to stay the proceedings in the ecclesiastical court, upon the bare suggestion of a modus by his bill. By the lord chancellor Hardwicke : If I should grant this injunction, I should make a precedent for tripping up the heels of two courts; the ecclesiastical court, and court of common law. The ecclesiastical court have a right to retain suits for tithes, whether at the instance of a spiritual person, or lay impropriator. There may be a suit also in that court for a modus, as well as for tithes in kind. The defendant likewise may plead a modus there : if admitted, the ecclesiastical court may go upon the modus; if denied, the ecclesiastical court cannot proceed, for defect of trial; and if so, it is the common suggestion for a prohibition in the court of king's bench; but if you come there for a prohibition, you must first shew the modus has been pleaded in the ecclesiastical court, and denied there: And no other court has the cognizance of it but the court of king's bench. And therefore I will not make such a precedent, as by a side wind will take away the jurisdiction of both courts at once. — And the motion was denied. 3 Atk. 628. 1 Eden. R. 276.

A bill in equity, in the nature of a bill of peace, will also lie Bill to estato establish a modus, where a suit has been instituted for tithes blish a in kind; but a bill to establish a modus or customary payment


(r) In what cases a prohibition must be sued for before sentence and where it may be had after, see Prohibition, 16.

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in lieu of tithes, cannot be supported, where there has been no attempt to enforce the payment of tithes in kind. Lord Coventry v. Burslem, i Gwill. 1896. See also Gordon v. Simkinson, 11 Ves. 509. And it is also necessary, that the ordinary should be made a party to the bill. Ib. And the court, if doubtful of the modus, directs an issue to be tried by a jury. 2 Anst. 564. & seq. Mitford, 127. & seq. 9 Vir. Abr. 78, 79. Vid. infra, VII. 12. Tithes how to be recovered. But a plea, that the defendant obtained a verdict and judgment against the plaintiff, upon stat. 2 & 3 Ed. 6. c. 13. was allowed to be good. Nels. Rep. in Cha. temp. Finch, 13. And the court has frequently refused to direct an issue, if the modus appeared, upon the statement of it, to be bad. See Torriano v. Legge, 1 Black. Rep. 420. [Rayner, 521.] and Bishop v. Chichester, 2 Bro. 161. [An issue involving the payment of the modus, and also the extent of the district which it was contended it covered, is double, and therefore irregular : Semb. The fact of payment cannot be proved by reputation, but a lease would be evidence of a fact of reputation. (9)]

In the Archbishop of York and Dr. Hayter v. Sir Miles Stapleton and others, Feb. 27, 1740; the archbishop was entitled, in right of his see, to the rectory of Milton in Yorkshire; and granted a lease for three lives to archdeacon Hayter, who made a derivative lease to one Taylor. And this bill was brought by the archbishop and Dr. Hayter, for an account of tithes in kind, and to establish the custom of setting out the corn in stooks. It was objected, that there is no foundation for this bill; because Dr. Hayter having made a lease to Taylor, is not entitled to any account, and cannot maintain a bill to establish a custom of setting out in stooks or stacks, which is a mere right. By the lord chancellor Hardwicke: I am of opinion, the bill to establish the custom is well brought; and that the person who is entitled to the inheritance is properly made a party, notwithstanding the tithes themselves were out in lease at the time for which the account is prayed; for otherwise, it might introduce great inconveniences by a collusion between the lessees and the occupiers; and that a bill may be even brought, without praying an account, to establish a mere right only, appears from the common case of bills for establishing moduses. (1) And therefore I shall direct an issue to try the custom. 2 Atk. 136.

(9) White v. Lisle, 4 Madd. R. 214.

(1) Bill lies to perpetuate the testimony of witnesses to prove a modus. Somerset v. Fotherby, 1 Vern. R. 185.

V. Of the several particulars tithable.

:. I. Corn and other grain, as [wheat, barley, oats,] beans, pease,,

tares, vetches, [and herein of balks, headlands, stubble,

and after-eatage of corn fields, p. 461.]
II. Hay and other like herbs, and seeds, as clover, rape,

wood, broom, heath, furze, p. 467.
III. Agistment or pasturage (2 Anst. 498. 500.), p. 473.
IV. Wood, p. 478.

V. Flax and hemp, p. 490.
VI. Madder, p. 491.
VII. Hops, ib.
VIII. Roots and garden herbs and seeds, as turnips, parsley,

cabbage, saffron, and such like, p. 495.
IX. Fruits of trees, as apples, pears, acorns, p. 496. .

X. Calves, colts, kids, pigs, p. 498,
XI. Wool and lamb, p.499.
XII. Milk and cheese, p. 507.
XIII. Deer and conies, p. 514.
XIV. Fowl, p. 515.
XV. Bees, p. 516.
XVI. Mills, fishings, and other personal tithes, p. 516.
[XVII. Marriage goods in Wales, p.521.]

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I. Corn and other grain, as [wheat, barley, oats,] beans, pease, tares, vetches, [and herein of balks, headlands, stubble, and aftereatage of corn fields.]

· 1. Corn is a prædial great tithe; and is tithable according Corn. to the custom of the place; and is commonly tithed by the tenth shock, cock, or sheaf, where the custom of the place is not otherwise. God. 393.

[The regular mode of tithing wheat is by the sheaf (2), though


(2) For this is the first convenient state in which the tithe can be collected after the corn is cut. Per lord Ellenborough in Shallcross v. Jowle, 13 East. 267. See the cases collected by Lawrence J. in Halliwell y. Trappes, 2 Taunt. R.58., and Smyth v. Šambrook, 1 M. & S. 70.

Rakings of corn gathered into sheaves are not due of common right; by which exemption, rakings left involuntarily, and without

there are cases to shew, that if in shocks, it is tithable that way. (3)

Of common right the owner of the corn ought to cut down and prepare the same, and to make it up into sheaves, cocks, or shocks; and if the owner refuse to do it, the parson may sue him for the same in the spiritual court; but then the suit ought to be special, for not setting them forth in cocks, and not generally for not setting them forth. But having made the corn into sheaves, he is not bound to set it up in heaps, unless the custom of the place oblige him thereunto. Wats. c. 49.

If a prescription be, to pay certain sheaves of corn for all tithes of corn, this is no good prescription; for the parishioners ought to make it into sheaves : and therefore part of his duty in kind cannot be in satisfaction of the residue. Wats. c. 49.

If the custom of the place be, to measure forth to the parson the tenth part of the corn whilst growing upon the land; it seemeth that this manner of tithing ought to be observed (4); or if the custom be, that the parson ought to have for his tithe of corn the tenth land of corn, beginning at such land as is next to the church, this custom is good; but when in such case the parishioners by covin, to defraud the parson, did not manure and sow such lands (the corn of which would by the custom be to the parson) so sufficiently as their other lands, and the parson therefore did sue in the spiritual court, generally, for the tenth

fraud, are alone meant. Wats. C. L. 486. Anon. Cro. Car. 596. Hob. R. 11.

(3) Mantell v. Price, Gwm. 1504. Thus, if by custom tithe corn has been paid in any other manner, as by gathering the sheaves into shocks (Archbishop of York v. Sir M. Stapleton, 2 Atk. R. 136.) or making them into cocks, (Wats. Cl. L. 540.,) the custom must be observed, and the tithe still paid in that manner, (Degge, c. 3.235.): and where the farmer usually put the sheaves into shocks, and in case of bad weather, opened them when dry; this benefit, together with the additional labour of the farmer,was held to support a custom of réndering the eleventh instead of the tenth shock. Smyth v. Sambrook, 1 M. & S. 66.

(4) But since the decisions in Halliwell v. Trappes, &c., such a custom would probably now be considered void ; it is quite impossible to collect a fair tenth by any such admeasurement, and the tithe owner is exposed to injury from the partial manuring or sowing particular spots, while others are neglected. Hence, though by the civil law he may be entitled only to the tenth ridge, (2 Leon. Ř. 70.) by common law, corn must be cut and collected into equal portions before it can be tithed. And see Degge, c. 3. 236. Wats. C. L. 539. Ledgar v. Langley, 1 Sid. R. 283. Knight v. Halsey, D. Proc. 2 B. & P. 196. Gwm. 1554. S. C. Collyer v. Howes, 3 Anstr. R. 954. Gwn. 1490. And per Lord Ellenborough in Shalloross V. Jowle, 13 East. 267.

sheaf and shock, and à prohibition was awarded because it was said that the parson might have his remedy at the common law for the fraud; yet afterwards in the same case a consultation was granted, Wray chief justice saying, that this custom was against common reason. Wats. c. 49. 2 P. Will. 569. [Bohun on Tithes, ch. 2. c. 36.]

If the custom be, that the odd sheaves or shocks, under the number of ten, shall not be tithed, by reason that they set up the tithes in heaps or shocks, which of common right the owner of the corn is not bound to do; the owner is not bound [ 462 ] to divide the said sheaves or shocks, and set forth the tenth thereof, for that such custom upon such consideration is good. Wats. C. 49. (See more of Custom, infra, VI. “ Of the setting out,&c.)

[Barley and oats become first titheable when put into cock (5); Barley and the mere labour of ventilating the cocks in wet weather by and vats, opening them, is not such an additional labour as will support a custom of paying less than the full tenth. (6) The parson is entitled to the rakings of the tenth cock of barley, which must be raked by the farmer's servant: and if he has paid for it, he is entitled to an allowance for that expence. (7)]

2. It is laid down in all the old books, that tithes are not to Balks and be paid for the herbage of meres or balks in corn fields; but meres. that the same are freed thereof by the common law and custom of the realm. 2 Inst. 652.

3. So, it is said, no tithes shall be paid for hay which groweth Headlands, upon headlands, where the horses and plough turn when the land is ploughed, if there be alleged a custom not to pay this, and also it be averred that the headland is only sufficient to turn the plough. i Roll's Abr. 646. (8)

4. So, if a man pay tithes of corn, it is said, he shall not pay Stubble. (9) any tithes for the stubble which groweth the same year upon that land, though the same be cut for thatch or other uses. 2 Inst. 652. 1 Roll's Abr. 640.

5. So, if a man pays tithe of corn, he shall not pay any tithes After-eatfor the after-pasture of that land for that same year, nor for age. 1) agistment in such after-grass. 1 Roll's Abr. 641.

[Nevertheless, notwithstanding these great authorities, the modern determinations in equity are directly contrary; for that the balks and meres, the headlands, stubble, and after-eatage,

(5) Woodshaw v. Hill, cited i M. & S. R. 72. Erskine v. Ruffle, 5 Bac. Ab. 74, 75. Gwm. 961.

(6) Smyth v. Sambrook, 4 M. & S. 70. .
(7) Filewood v. Kemp, 1 Hagg. R. 491.
(8) Chapman v. Barlow, Bunb. R. 184.'

(9) Andrews v. Lane, Gwm. 477. Johnson v. Aubrey, Cro. El. 660. Chapman v. Keep, 2 Wood's D. 424.

14. So, if a man skubble which growetch or other uses.

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