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been exercised with great moderation by lord Eldon. “ With
“ regard to the cases,” says he, “ I never could persuade myself
" that ls. per acre for all tithes was not in all probability a
" monstrous payment, and that the payments sent to be tried at
“ law were not monstrous : but still the judges have thought even
“ such payments ought to go to trial, and verdicts, under which in
“ many cases even more has been claimed, have been confirmed.
“ I am not at liberty, therefore, after what has passed in former
“ cases, whatever may be my persuasion as to the truth of this
““ case, to say this must not be tried. In Fermor v. Loraine, I never
“ had the least doubt that the modus was too rank, but the court
“ sent it to an issue.” (6) On a motion for a new trial, he added,
“ I cannot hold the language that has been held as to sending
“ this to the prejudices of a jury. A jury is the constitutional
6 tribunal of the country, and I am not at liberty to suppose they
6 will be guided by prejudice. It is extremely well understood
“ now, that the question, whether rank or not, is a question of
66 fact (7); and the best way in cases of this description is to
“ leave them to a jury, who, from reference to the state of culti-
“ vation or of luxury at the time, may have the best opportuni-
6 ties of ascertaining the fact.” (8)

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

Farm modus to be sent to a jury.

(6) O'Connor v. Cooke, 6 Ves. 672.
17) Ib. 8 Ves. 539.

18) 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 Ånst. 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 [ 455 ] kind is an inheritance certain, and it is against nature that it M

durable, should be extinguished by a recompence not as durable at least, lies must though not so valuable; for this reason, four pence to be paid be certain yearly, by two persons inhabiting two such houses, in consider- with refer

ence to duation of all tithes, hath been adjudged ill; because the houses

ration. may decay, or none live in them. Gibs. 675. (n)

(See ante,

8., for cer- (3) Heaton v. Cooke, Wightw. R. 281. As to proof of farm modus

tainty as by terriers, see Terrier, 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, Gwn.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 id. 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 11. Custom or prescription must be constant, without interwithou terruption.

in- ruption; and perpetual, from the time whereof the memory of [ 456 ]

; man is not to the contrary: for if there have been frequent inter

ruptions, 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) Modus how 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,

(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 á 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.

to) 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. i Brownl. 32. Grymly v. Falkinhan, 4 Mod. 45.

(6) 1 Rol. 652. I. 17.
17) 1 Roll. Abr. 652.
18) Beding field v. Fenk, Cro. Eliz. 467. Wats. Cl. L. 513. Hob. 39.
(9) Degge, c. 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)]

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, 1H. Bla. 100. Stainbank v. Bradshaw, 10 East. 349. S. P.

by the temporal laws it must be beyond the time of memory. Gibs. 691.

But the spiritual courts have commonly allowed and do allow pleas of modus decimandi ; and the averment in the prohibition is not, that they do take cognizance, but that the plea hath been offered and refused; which supposeth, that if the plea be admitted, the prohibition ought not to go.(5) And accordingly it hath been affirmed by Doderidge and others, that the spiritual court may as well try the modus, as the right of tithes; and that a prohibition is not to be granted, till the spiritual court either refuse to admit the plea, or proceed to try it by methods different from the rules of the temporal law, as to the time of limitation, or number of witnesses, or the like. (6) And where lord Coke contended for the contrary doctrine, it was declared by Kelynge and Twisden, in the case of the Bishop of Lincoln against Smith (7), that in case one libel for a modus decimandi, if the spiritual court allow the plea, they may try it. Gibs. 691.

But, notwithstanding, it seemeth now to be clearly settled, that if a modus decimandi be sued for in the ecclesiastical court, a prohibition lies to stop the trial of it, if the modus be denied (9); and the reason is not upon the account that the spiritual court wants jurisdiction, but in regard of the notion the temporal law hath of custom different from the spiritual : And seeing that every modus is due by custom, it is the common law only that can determine, what time and usage with us shall be sufficient to create such custom, that is, time beyond all memory to the con

trary. Whereas by the spiritual law, sometimes ten years, [ 458 ) sometimes twenty, they will adjudge sufficient to create a custom.

And prohibitions in such cases are granted, not because the spiritual court hath not jurisdiction of the matter, but in respect of the trial which is to be by the temporal law only; and if upon the trial it be found for the modus, the proceedings shall go on in the spiritual court; if against the modus, the prohibition shall stand. Wats. c. 56. [The suggestion for a prohibition to the spiritual court in a suit for small tithes, if in the affirmative, must be proved within six months, according to 2 & 3 Ed. 6. C. 13., which are calendar months. (8)]

(5) Yet there are several exceptions, as in cases of personal and small tithes, in which customary payments are allowed without breach of conscience. Gibs. 691. *(6) Price v. Mascoll, 3 Bulst. R. 241. (7) i Ventr. R. 3.

(9) It is not sufficient that the modus be denied, except the spiritual court be proceeding to try it ; for it may be immaterial to the question. [Dutens v. Robson,]1 H. Bla. R. 100. [So comm. semb., If no proceeding is had since the plea of modus. Graham.y. Potis, 1 Bla. R. 295.)

(8) Foy v. Lister, 2 Raym. 1171. 2 Salk. 554.

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