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the waste and common. And lord Mansfield said, that the case of Lambert and Cumming was determined upon the same ground as lord Hardwicke's decree went upon in the case of Stockwell and Terry ; namely, " That what was before exempted shall “ remain exempted; and what was not before exempted shall pay tithe.” 3 Burr. 1375. [1 Bla. R. 402. S. C.]

E. 38 Geo. 3. Lord Gwydir v. Foakes. In the parish of Croydon, in the county of Surry, there was a large quantity of waste land, on which the tenants of the adjoining estates had rights of common. Before any inclosure was in contemplation, the tenants purchased the right to all the tithes of the lay impropriator in respect of their several estates. The conveyances were made in very general terms: All tithes arising out of or in respect of the several messuages or tenements, farms, lands,&c. The court of K. B. held that the tithes in respect of the rights of common appurtenant to such farms or lands passed by such grant, and the subsequent inclosure of the common could not vary the question, notwithstanding the increased value of such tithes.

7 Term Rep. 641. (Commons [A. having purchased an estate and the tithes thereof, with inclosed by act of par

a right of common thereto annexed; the common was afterwards liament.] inclosed under an act of parliament, and certain land was allotted

to A. in lieu of his said right of common. No tithe is payable in respect of the allotted land (8), for the land in respect of which it is allotted is wholly free from tithe.

By the East Moulsey inclosure act it was enacted, “ That the 66 commissioners should set out, allot, and award certain portions 66 of lands out of the commons to be inclosed unto the improo priate rectors and curate in lieu of all great and vicarial tithes :" and the commissioners were required to distinguish by their award the several allotments to the rectors and curate respectively, and the same allotments were declared to be in full satisfaction and discharge of all tithes : Held under this act, that the tithes were not extinguished till the commissioners had awarded as well as allotted and set out the allotments; for the freehold did not vest therein before the award was executed. (9) As to ripping up an allotment to a benefice after 50 years elapsed for insufficiency, see Cooper v. Thorpe. (1)

An inclosure act appointed a corn rent to be paid in lieu of tithes to be ascertained by certain referees, and the exact amount declared by an order of quarter sessions. It appeared that the sessions merely received and filed the report of the referees; and

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the court held that it could not be construed into “ an order declaring the exact amount to which such rent was to be increased. Held also, that the commissioners having made minutes in writing of their proceedings, the defendant could not be let in to shew by parol evidence that the allotments were made at an earlier period than appeared by the award, no search or inquiry having been made after such minutes or proof given that they were destroyed. The proceedings were the legal evidence of the fact when such allotments were made. (2)

An inclosure act directed that in lieu of tithes a corn rent should be payable to the person having possession and occupation of the lands. Part of the lands inclosed were uncultivated and untenanted for some years, during which time the owner lived on another estate. He afterwards demised them to a tenant who entered and occupied. Held, 1st, That the corn rents were due for the time during which the land was unproductive; and, 2dly, that during that time the landlord was legally in the possession of the lands, so as to be liable to the burthens imposed by the act, and that the tenant coming under him was liable to be distrained on for the arrear of rent. (3)

By 41 Geo. 3. (U.K.) c. 109. $38. The rector or vicar of any parish in which lands intended to be inclosed are situate by indenture under his hand and seal, with consent of the bishop of the diocese, and of the patron, may lease their allotments for not exceeding 21 years, commencing within 12 calendar months next after the award, so that the rents shall be reserved to the incumbent for the time being by four quarterly payments, and shall be the most improved rents that can be had without taking any fine or other consideration for granting such lease, a counterpart of which shall be executed by lessee; and no such lessee shall be made dispunishable for waste by express covenant; and power of re-entry on non-payment of rent shall be reserved in such lease.

By 1 and 2 Geo. 4. c. 23. $ 4. Whenever any leases to be granted by any incumbent under the above enactment shall by any means become forfeit or void, or are surrendered before expiration of the term, then the incumbent, with previous consent of the ordinary and patron, may grant a new lease of the lands so demised for such term of years as shall at the time of such avoidance be then unexpired of the term granted by such original lease, subject to the conditions therein then unperformed and capable of having effect.]

(2) Bendyshe v. Pearse, 1 Brod. & Bing. R. 460.
(3) Newling v. Pearse, 1 Bar. 8. Cres. Rep. 437.

between custom and

IV. Of moduses, or exemptions from payment of tithes

in kind ; [of compositions real;] and of custom and

prescription. Difference 1. The difference between custom and prescription is this:

Custom is that which gives right to a province, county, hundred, prescrip city, or town, and is common to all within the respective limits; tion. in pleading of which it is alleged, that in such a county, or the

like, there is and time out of memory hath been such a custom used and approved therein. Gibs. 674.

Prescription is that which gives a right to some particular house, farm, or other thing: in pleading of which it is alleged, that all they whose estate he hath in such land, have time out of mind paid so much yearly, or the like, in full satisfaction of all

tithes arising on those lands. Gibs. 674. (1) De non de

2. Custom and prescription are either de non decimando, or de cimando.

modo decimandi. [ 432 ] De non decimando is, to be free from the payment of tithes, [Spiritual without any recompence for the same. Concerning which, the persons

general rule is, that no layman can prescribe in non decimando ; may prescribe de

that is, to be discharged abolutely of the payment of tithes, and non deci. 'to pay nothing in lieu thereof; unless he begin his prescription mando, but in a religious or ecclesiastical person, and derive a title to it by general can- act of parliament. (2) As in the case of Breary and Manby, not. Ex- Nov. 18. 1762. In the exchequer. Mr. Breary, rector of Midceptions.) dleton upon the Woulds of Yorkshire, brought his bill against

Mr. Manby, one of his parishioners, for great and small tithes arising from the defendant's lands. The defendant by his answer insisted, that part of his farm had time out of mind been exempt from payment of tithes of any kind, or any modus or compensation in lieu thereof; and by his witnesses proved, that no tithe, modus, or compensation, had within the memory of man been paid for such part of his farm. The court, at the hearing of the

(1) Bennet v. Read, 1 Anstr. 323. 1 Saund. R. 340. b. Degge, c. 13. 268. And there is this difference between a prescriptive and customary modus, that the former is annexed to the lands which it covers, whereas the latter exists in notion of law, independent of the lands, by force of the custom of the district. In a prescriptive modus, therefore, the lands must be definite, and not liable to shift. And therefore a bill to establish a modus for every ancient farm, but not setting out the abuttals of each, was dismissed, although it was stated that the whole parish consisted of ancient farms. Scott v. Allgood, 1 Anst. 16. Vid. infra, divs. 8.8 10. of this tit!e.'

(2) Besides Breary v. Manby, in the text, see Sherwood v. Winchcomb, Cro. El. 293. Webb v. Warner, Cro. Jac. 47. Seld. c. 13. $ 2. 1 Roll. Ab. 653. Allen v. Pory, 2 Keb. 45. Bishop of Winchester's case, 2 Rep. 44.

cause, was clearly of opinion, that the mere non-payment of tithes, though for time immemorial, would not be an exemption from payment of them, without setting out and establishing such exemption to have arisen from the lands having been parcel of one of the greater abbies ; and therefore decreed the defendant to account for the tithes of that part of his estate for which he claimed the said exemption. [3 Wood's Dec. 43.]

But all spiritual and religious persons, as bishops, deans, prebendaries, parsons, vicars (as heretofore abbots and priors), may prescribe generally in non decimando, for they are more favoured than lay persons; for this is still in a spiritual person, and so nothing is taken from the church: for such spiritual person was capable of a grant of tithes at the common law in pernancy. (3) And hence it is that the parson or vicar of one parish, that hath part of his glebe lying in another parish, may prescribe in non decimando for it; that is, (as hath been said,) to be free from the payment of any manner of tithe for the same. 1 Roll's Abr. 653. [Com. Dig. tit. Dismes (E 2.)]

[But an ecclesiastical person cannot decline the payment of tithes, unless he prescribes in non decimando, and the maxim ecclesia ecclesiæ decimas solvere non debet, applies only as between rector and vicar of the same church. (4) But evidence that the land of a spiritual farmer has never paid tithes is sufficient to prove a prescription in non decimando. (5)]

But this general rule, that none but spiritual persons or corporations may prescribe in non decimando, is to be understood with several exceptions; as, first, that the king, as being mixta 1. The king, persona, may prescribe de non decimando ; by the same reason that as such, he is capable of tithes. Gibs. 674. [ante, 425, 426.]

Also the lessee, tenant at will, and copyholder of a spiritual 2. Tenants person, though a layman, shall in this respect enjoy the exemp- in

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up holders of tion of the lessor, who is supposed to reap the benefit of it, in spiritual reserving so much the greater rents by reason of such exemp- persons. tion. 1 Roll's Abr. 653. Deg. p. 2. c. 16. (6)

+ [ 433 ] [Hence a bishop may prescribe that he and his tenants for life, for years, and at will, as well as his copyholders have been freed from the payment of tithes (7); nor will an interruption of the prescription, by a conveyance to a lay person abolish it, as the land being discharged of tithes when regranted to a bishop, the pre

tit, Butllr. 658. Payment o for it; zinginaison or

ns may ceptions 'de non ches.

(3) Gerrard v. Wright, Cro. Jac. 607.

(4) Warden and Canons v. Dean of St. Paul's, (1817) 1 Wils. Ch. R. 1. 4 Pri. R. 65. See Blincoe v. Barksdale, Cro. El. 573.

(5) Nash v. Molins, Cro. El. 206. Clavill v. Oram, Gwm. 1355.
(6) Crouch v. Fryer, Cro. El. 784. Wright v. Wright, id. 475.511.

17) Branche's case, Moor. R. 219. Bowles v. Atkins, 1 Sid. R. 320. 1 Roll. Ab. 653. Lincoln (Bishop) v. Cowper, 1 Leon. R. 248.

scription revives. (8) But in Lagden v. Flack (9), it was said, that if land has no discharge from tithe in its own right, it is only discharged when actually held by an ecclesiastic, under the maxim ecclesia decimas non solvit ecclesiæ : and if it is transferred into the hands of laymen, it becomes liable. For this privilege being only personal, does not travel from the parson to the lay lessee. If lands have any local privileges of exemption from tithe, the burthen of proof is on the party claiming such exemption. And see also contra cases, 425, note (1)]

In the case of Stephenson and Hill, H. 2 G. 3. An action was brought upon the statute of Ed. 6. for the payment of tithes of corn and grain. The defendant pleaded the general issue, Nil debet : And the cause came on to be tried before Mr. Justice Bathurst, at Appleby Assizes, Aug. 14. 1760. Upon the trial it appeared, that the lands whereon the corn mentioned in the declaration grew, were and immemorially had been customary lands, parcel of the manor of Morland in the county of Westmorland, and holden of the lord thereof for the time being : That the said manor of Morland, and the appropriate rectory of St. Michael's Appleby, were parcel of the possession of the priory of Wetherel in the county of Cumberland, which was one of the larger dissolved monasteries, and was vested in the crown by the statute of 31 Hen. 8. and that the prior of the said priory, at the time of the dissolution, was and had been immemorially seised of the said manor with the appurtenances, in his demesne as of fee, in right of his priory: and also of the appropriate rectory of St. Michael's Appleby, and the tithes there. It also appeared, that the said manor and appropriate rectory being so vested in the crown, the same was in due manner granted to the dean and chapter of Carlisle in fee; and that they are still seised thereof in fee, in right of their church; and that the present defendant was the customary tenant and occupier of the said lands whereon the said corn grew, during the time in the declaration mentioned; and held the same of the said dean and chapter, as of their said manor of Morland: That the plaintiff is farmer of the corn and grain tithes growing and arising within the territories of Bondgate, within the parish of St. Michael's Appleby aforesaid ; and the lands whereon the corn grew, lie in the territories and parish aforesaid. It appeared, that no tithes had ever been yielded or paid for or in respect of the said lands. It also appeared, that all the other customary tenants of the said manor pay tithe. It also appeared, that this was the only customary tenant belonging to the said manor, which was within the said parish of St. Michael's. Whereupon a verdict was found for the

(8) Wickham v. Cooper, Cro. El. 216.
(9) 2 Hagg. R. 307-309.

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