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 1s. 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) Mytton 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 prima facie title to the tithes of a parish sues, (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. Williams 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. Perception 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. (5) Webb v. Giffard, 4 Bro. P. C. 212. Gwm. 708. Farm modus to be sent to a jury. 66 been exercised with great moderation by lord Eldon. 66 A distinction between sending a farm modus and a modus for a specific produce to a jury was introduced by lord Hardwicke (9), and assented to by Macdonald C. B., who said that in a farm modus the court should be extremely cautious in deciding a question without the intervention of a jury, particularly where a doubt arises as to the fact of rankness, as the owner may have meant a bounty to the clergyman, or to pay for an exemption from tithes for the sake of improvement; nor should it be nice in judging of the value or goodness of the bargain, where by any probable circumstances which policy or propriety may have dictated, there may have been a real agreement between the parties before the time of memory. (1) Other motives than those of pecuniary bargain might have influenced a particular proprietor to make a grant to the church; and the validity of a farm modus therefore is not to be tried by a comparison of value with the whole tithe at any remote period. (2) Hence B. Wood states, that for the forty or fifty last years he cannot find that either (6) O'Connor v. Cooke, 6 Ves. 672. (7) Ib. 8 Ves. 539. (8) Per Richards C. B. Drake v. Smith, 1 Dan. R. 115. So in Williamson v. Lord Lonsdale, 5 Pri. R. 25. Dan. R. 49., that C. B. asserted the impartiality of juries in tithe cases. (9) Chapman v. Smith, 2 Ves. 506. Richards v. Evans, 1 Ves. 36. Edge v. Oglander, Bunb. 301. Bishop v. Arundel, 1 Rayner, 98. (1) Atkins v. Ld. Willoughby de Broke, 2 Anst. 397. (2) White v. Lisle, 4 Madd. 224. courts of chancery or exchequer have taken on themselves to determine a farm modus to be had on the face of it on accountof its largeness, but have thought it right to send it to a jury. (3)] 10. A modus must be something durable; because the tithe in kind is an inheritance certain, and it is against nature that it should be extinguished by a recompence not as durable at least, though not so valuable; for this reason, four pence to be paid yearly, by two persons inhabiting two such houses, in consideration of all tithes, hath been adjudged ill; because the houses may decay, or none live in them. Gibs. 675. (n) [455] Must be durable, [i.e. must ence to du- to descrip (3) Heaton v. Cooke, Wightw. R. 281. As to proof of farm modus tainty as by terriers, see Cerrier, and for method of proving local situation, see tion.)] Wright v. Southwood, 5 Pri. R. 608. (n) Gresham's case, Cro. Eliz. 139. So also a modus for tithe to be paid by the inhabitants of such a tenement, and the lands usually enjoyed therewith, was declared void by Sir Joseph Jekyl M. R.; for the tenement may fall down, and be uninhabited, and the lands may be shifted, and let with other farms. [So, where all the occupiers of farm houses on the north side of a lane, with the land usually occupied therewith, had time out of mind paid 3d. at Michaelmas in each year for each cow; and all occupiers of farm houses on the south side of the lane with the lands usually occupied therewith, had time out of mind paid 2d. yearly for each cow, in lieu of tithe of milk; the modus was held bad, and an account directed. Carleton v. Brightwell, Gwm.676. 2 P. Wms. 462. Perry v. Soam, Cro. El. 139.] And a modus, that the occupier of every farm house within a township should pay a tilt penny, in lieu of the tithe of hay of lands occupied with such farm house, was holden to be void by the court of exchequer, because it shifted according to the occupation of the lands, and was liable to be reduced to a single penny, if not to be totally annihilated. Travis v. Whitehead, & al. 2 Rayner, 762. Travis v. Oxton, 1 Anst. R. 308. But a modus of 2d. payable by every inhabitant householder of a parish for the tithe of fruit, fuel agistment, &c. was decided in the court of exchequer to be good, because though the number of houses may diminish, it may also increase. And the inhabitants householders of a town or vill being perpetual in contemplation of law, the recompence to the vicar is certain and durable to a common and reasonable intent. Bennett v. Read, 1 Anstr. R. 322. See also Hardcastle v. Smithson and Slater, 3 Atk. 245. [This last decision has been confirmed in a late case; Leyson v. Parsons, 18 Ves. jun. 174. There an annual payment of 1d. by each occupier of lands in the parish for tithe of hay, was held a good modus; the Master of the Rolls saying, "On comparing the manner in which it is laid with that in Bennett v. Read, there is no distinction between them. In each case a custom is alleged in the parish for every occupier to pay a particular sum in lieu of all tithe; the quantity is therefore immaterial. If that case is to be distinguished from Travis v. Oxton, so is this in the same manner. If those cases are not to be distinguished, Bennet v. Read being the more recent case, I ought to follow it, and on that authority to hold this a good modus: but the vicar is entitled to an Must be without interruption. [456 ] 11. Custom of prescription must be constant, without interruption; and perpetual, from the time whereof the memory of man is not to the contrary: for if there have been frequent interruptions, there can be no custom or prescription obtained. But after a custom or prescription is once duly obtained, a disturbance for ten or twenty years shall not destroy it. 4 Deg. p. 2. c. 13. (4) 12. As every consideration will not make a good modus; so a destroyed. modus, thoughf ounded upon good consideration, may be several ways discharged, and tithes become due in kind: As, Modus how (1) Where land is converted to other uses : so when the prescription is for hay and grass, specially, in so many acres of land; if the land is converted into a hop garden or tillage, the prescription is gone. (0) (2) By the [removal,] alteration, or destruction of the thing for which the money was paid: as, where two fulling mills were under the same roof, and turned into a corn mill; where also there was one pair of stones in a mill, and another pair was added (5); and where the watercourse was altered by the owner, and the mill was pulled down and re-edified upon it (6); in all these cases, it was adjudged that the modus was gone. [So where the owner of a mill, of his own accord, without cause or necessity removes his mill to a new place. (7) If there is a modus to pay a buck or doe, or shoulder of a deer, for all manner of tithes in a park (8); or 10s. for the deer and herbage of a park, and not for all the park; in all cases where the park is disparked, the prescription is gone, and if the land is cultivated with corn, tithes in kind must be paid. (9) In most cases, indeed, where the issue, if he chooses. The distinction seems to be this: a payment by the inhabitants of certain houses is a bad modus, because houses may decay and not be rebuilt, or they may be uninhabited, and the modus depending on their existence, may be objected to for want of reasonable certainty in duration; but as it is not to be contemplated that a town or village will ever be wholly without inhabitants, a modus to be paid by the inhabitant householders within a town or village is sufficiently durable, and may on that account be good." Bennet v. Read, 1 Anstr. R. 329.] (4) 2 Inst. 653, 654. 1 P. Wms. 663. Nowell v. Hicks, Gwm. 1570. Wats. C. L. 512. (o) i. e. [suspended] till the former culture is restored, [and then the modus revives: or if the modus is for the land, an alteration in the mode of using it does not affect the modus. Hob.39.] (5) Talbot v. May, 3 Atk. R. 18. 1 Brownl. 32. Grymly v. Falkinhan, 4 Mod. 45. (6) 1 Rol. 652. l. 17. (7) 1 Roll. Abr. 652. (8) Beding field v. Fenk, Cro. Eliz. 467. Wats. Cl. L. 513. Hob.39. (9) Degge, e. 16. 313. origin of a park is discoverable, the modus is defective, as the king's licence to impark is seldom so ancient as the reign of Richard I.] But where a man was seised of eight acres of meadow and one of pasture, for the tithes whereof he had paid time out of mind 5s. 4d., and afterwards the owner built a corn mill upon the same; it was adjudged that he should pay no tithes for the corn mill, because the land was discharged by the modus. 2 Inst. 490. [So if there are several water mills for which a modus of 4s. per ann. is paid, the destruction of one does not affect the modus, which is still payable(1); or if there is a prescription time out of mind, and the prescriber lets the land to farm, and the farmer pays tithes in kind, this does not destroy the prescription as to the lessor. (2)] (3) By non-payment of the consideration, or by payment of the tithes in kind, for so long a time as to destroy the possibility of making proof that such custom or prescription was (p): but an interruption for some short time only, will not discharge it; especially if made by the lessee, to the prejudice of the lessor. Wats. c. 47. Gibs. 675. [And see note (4) in last page. Unity of possession, viz. to have the fee simple in the rectory, and in the land will not destroy a modus decimandi. (3)] to be tried. 13. The rule is, that the modus is to be sued for in the eccle- Modus,how siastical court, as well as the very tithe; and if it be allowed between the parties, they shall proceed there (4); but if the custom be denied, it must be tried at the common law: and if it be found for the custom, then a consultation must go; otherwise the prohibition standeth. The like is affirmed, in case a jury upon an issue joined in a prohibition upon a modus decimandi, find a different modus; since a modus is found, they shall not [457] have consultation. 2 Inst. 490. The principal reason why the courts of common law prohibit the spiritual court from trying moduses, are, that whereas every modus is less than the real value, the rule of the canon law is, that less than the real value shall not be taken, and that a custom to the contrary is void; and that the ecclesiastical and temporal laws differ in the times of limitation, forty years or under making a good custom by the ecclesiastical laws, whereas (1) Talbot v. May, 3 Atk. 17. Degge, c. 17. 316. (2) Monke v. Butler, 2 Roll. R. 176. (p) [For custom and prescription may be lost as well as obtained by time.] In this case, it doth not appear, in point of law, that the modus ever existed. [Com. Dig. tit. Prescription (G.), tit. Dismes (E 20.) Wats. C. L. 512.] (3) Chambers v. Hanbury, Moor. R. 527. 1 Roll. Ab. 936. See ante, 424., and note (s) there. (4) Full v. Hutchins, Cowp. 422. Dutens v. Robson, 1 H. Bla. 100. Stainbank v. Bradshaw, 10 East. 349. S. P. |
