from the magnitude of the payment in the former case is much stronger against the fact that it is immemorial than in any agreement to pay so much an acre, and à fortiori for a particular farm; for it is perfectly easy in almost any period of our history to ascertain what a lamb was worth, and therefore to conjecture upon what composition the parties in any place would agree: but what was the value of land in a particular parish at a particular period, and what therefore it is proper to give per acre, is a very complicated question. (3)]

In Chapman v. Smith, July 17, 1754, the bill was brought by the rector of the parish of Altringham in Kent, for payment of tithes in kind for the lands therein. The defence set up in the answer was a modus in this parish time out of mind, that all occupiers in the marsh lands in this parish have always paid, or ought to pay, yearly to the rectory 9d. an acre, and no more, for every acre of marsh land within the said parish, and the titheable places thereof in their respective possessions, except when sown with corn, grain, flax, or planted with hops, as a modus in lieu of all tithe of hay and pasture, and all small tithes except flax, hemp, and hops; and so after that rate for a greater or less quantity than an acre of marsh land. For the plaintiff it was rested on the rector's title. For the defendant it was argued, that this was a good modus and well laid: and a case in the exchequer in 1726 was cited, where a bill was brought by Richard Bate as rector of the parish of Warehorn, the very next to this parish, for tithes in kind; and a cross bill by sir Charles Sedley and others, inhabitants of that parish, to establish a modus of one shilling for every acre of marsh land, laying exactly as the present modus: Two issues were directed; and upon the equity reserved after the trial, the modus was established. This is a precedent both in law and equity, shewing this as a modus well laid, and that in a court where these kinds of bills are particularly attended to; and answers the objection of being too rank, [451] this being laid only at 9d. an acre. In Evans v. Price, 26th Oct. 1747, it was held, that the rankness of a modus is not to be judged by comparison of the sum to the rent reserved on the land, but to the value of the land; and that where it was necessary in point of proof, the court would direct that matter to be tried, but otherwise the court itself would judge of it. These lands lie in Romney marsh; to preserve which the owners are at a very great expence, and therefore it is probable that they made this composition, and then the variation of the land is not a reason to say, this is a rank modus; for the value of lands depends on particular husbandry, and is uncertain. It is im

(3) Mirehouse on Tithes, 186. O'Connor v. Cooke, 6 Ves. R. 672. Heaton v. Cooke, Wightw. R. 304. 306.; and see Chapman v. Smith, and Ekin v. Pigot, in text.

possible to say, what the value of the lands was at the time of this composition, and reasonable to think a proper valuation was then made.-For the plaintiff it was answered, Where a modus appears so large, that it is impossible it could be time out of mind, the court will always destroy such a modus upon the face of it. Every modus presumes an original agreement before the disabling statutes, by parson, patron, and ordinary. The commencement then must be presumed consistent with right reason; and the court will not presume that the parishioners (in whose favour all these contracts are) made such a composition as was of more value than the tithes. The payments must be always in money: this being pasture tithe, which is always pecuniary, cannot be specific, and the only tithe in the kingdom which is not specific. It is not to be conceived, that 9d. would be paid, if the real tithe did not amount to half that. The value of an acre, to support this as a reasonable composition, at the time must have been 7s. 6d. So high a modus creates a strong presumption, that it was not made beyond time of memory. The law fixes that to a certain period in the time of king Richard the first, since whose death it is above 560 years. This then must be presumed an agreement before that time to pay 9d. an acre. In fact, in the time of king Hen. 8. these lands were valued at 2s. an acre; as appears from several records, particularly from a survey then taken, now produced out of the augmentation office. The other objection, and which destroys the modus on the face of it, is from the exception of tithe of hops; which shews it a composition coming in queen Elizabeth's time; though perhaps they existed here a little before, there being a statute in the time of Hen. 8. prohibiting them as a venomous weed. It could not then be an agreement before time of memory. The ехсерtion must be taken entire with the modus; for the court never [452] severs a modus, or considers one part as good, and another as bad. Hops being alleged as part of the description, it is thereby as much felo de se as if laid particularly and precisely for hops, which is never allowed.-By the lord chancellor Hardwicke: This case is of very great consequence, the marsh extending through a vast tract of country. The court certainly ought to support the rights of the church, and not to allow any modus or customary payment that by the rules of law is not to be supported. At the same time the court ought not lightly to overturn customary payments, that have prevailed for a great tract of years, which is commonly called time out of mind, or the memory of man; though I do not mean strictly according to the notion of law, before the time of king Richard the first. There are two objections against this modus; one is, that this payment of 9d. an acre cannot have subsisted time out of mind, because 9d. an acre must be much above the value of the tithe at the time this

modus must be supposed to commence; which the law of England, by a pretty extraordinary stretch (and which, I believe, no other country does), makes from the transportation of king Richard the first to the holy land. The other is, that this modus cannot have subsisted time out of mind, because there is an exception of a product and culture, which was not and could not be in use at the time when it was supposed to commence. And this objection hath in it something very material; for hops are always allowed to have been introduced in modern times, that is, modern in respect of long antiquity. They began to be used and propagated in queen Elizabeth's time, and existed in this kingdom some time before: they were here, as tobacco is here, planted for curiosity and in small quantities. It is not possible there could be such an exception at the commencement of the modus; but the question is, whether the making this exception overturns the affirmative part of the modus. And I am of opinion it doth not. Suppose the agreement was to pay 9d. an acre for all small tithes of this land, except such small tithes as shall be afterwards introduced, that would be certainly a good agreement. Then, instead of laying it in those general words, they have specified it with such a sort of product, as these lands probably will be tilled with. And it is too much to lay such weight on this objection, as to overturn the modus on that account. The more material objection is, whether the modus is [453] not too rank. It is insisted upon as too high in point of value, and therefore that the court is bound to take notice of it, and ought to over-rule it. That doctrine hath undoubtedly prevailed in several cases; but most commonly as to the value of particular things for which the modus hath been set up, as where it is so much for a sheep or lamb, or a particular kind of product, the value of which may be shewn at these times: but it may differ as to a modus set up as to the value of lands, because several incidents and accidents may attend that; the alteration of traffic or commerce, or of the culture of land, either improved or falling in value by accident, makes such a modus more uncertain than in respect of the value of a particular kind of product, as calves, sheep, lambs, and things of that kind. (4) Therefore, though this objection is taken in point of law for the judgment of the court, yet the court doth not always proceed as bound to determine in that way, but hath considered it as a matter of fact proper for a jury. And this being a case of so much consequence, I shall send it to a trial at law. And he directed an issue accordingly. 2 Vezey, 506. [And in Mitchell v. Neale (5) it is said, that the former practice in the court of

(4) And see O'Connor v. Cooke, 6 Ves. R. 672.
(5) 2 Ves. 680. M. 1755.

exchequer, of directing an issue to try a modus in the first instance, is now altered; but not in every case.]

In Ekin v. Pigot, March 3, 1745, a bill was brought for tithes in kind of the manor of Dodeshall in the parish of Quainton. The defendant insists upon a modus of 487. in lieu of all tithes of that manor. For the plaintiff it was insisted, that it was too rank; for the whole rectory was worth but 33l. a year in Henry the eighth's time; and the whole demesne lands of that manor, in queen Elizabeth's time, were worth but 487. a year: so that the modus then would have been just as much as the manor itself. And the plaintiff proved, as exhibits, the value of the first fruits from a return made by the augmentation office; and for the value of the manor, an inquisition post mortem. By the lord chancellor Hardwicke: There is no person more unwilling than I am to set aside such payments in lieu of tithes ; but there must be some ground of law upon which to support such payment. The objection is, its being too rank a modus, and consequently that it could not be time out of mind; for it appears that manor is now but 80l. a year; and according to the natural improvement of lands from Henry the eighth's time, it ought to have been ten times as much, on account of money sinking in its value, and lands rising in theirs. The returns from the first fruits office, and the inquisition post mortem, though they are not conclusive evidence, yet are sufficient upon the circumstances of this case; because the defendant has not produced any evidence [454] to contradict it. Taking all the evidence together, this appears to be nothing more than a composition upon agreement, which parsons have submitted to in succession (6) from time to time, and is merely a personal payment; not a composition real, which is some charge given to a parson upon lands, under a deed to which himself and the patron and ordinary are parties, and of a different nature from this. 3 Atk. 298.

in evi

dence.]

[Rankness is only evidence against the immemoriality or [454 a] antiquity of the payment, and forms no objection in point of law [Effect of to the modus, if it can be inferred to have existed. So the mere rankness, quantum of the sum is not to be taken as decisive evidence of the when given rankness of a modus; but it must also be considered whether it has been immemorially paid, notwithstanding its magnitude. (7) The wording of the question sent by Ch. Bathurst, for the opinion of C. P. in Pike v. Dowling (8), was thus, "Whether “modus of 2s. 6d. for every tenth lamb, to be paid on 5th April "in each year, is a good modus, or not?" The court certified,

(6) See p. 442.

(7) See Wightw. R. 289.

a

(8) 2 Bla. R. 1257. Gwm. 1169. See Twells v. Welby, Wightw. R. 303 Gwm. 1192.

[Power of courts of

that as the case admitted the existence of the modus in question from time immemorial, which they conceived to be a question of fact (9), they were of opinion that there did not appear any reason why this should be considered as a void modus in point of law, as for uncertainty, inequality, &c. The question of rankness was therefore precluded (1), because the question asked furnished its own answer unavoidably. (2) It however seems now generally allowed, that as the modus is a question of fact and not of law (3); so rankness is only matter of evidence relating to such modus (4), and as such a question of fact only. (5)

Upon the power of courts of equity to decide on this equity to fact of rankness without the intervention of a jury, difference of opinion has existed among the judges of these courts. The decisions have upheld the principle, that as the law now stands, "a court of equity shall decide on facts as well as

decide on

rankness without a

jury.]

66

on law, if they have sufficient evidence of the fact to satisfy "their minds." It is nothing to say (proceeds C. B. Richards) that the question of modus is a question of fact; because if it is such, we are alike bound to decide it, if the evidence is sufficient to enable us to do so. It is like every other fact, and what is called rankness is only matter of evidence. (6) Again, lord Eldon desired it to be understood, that after then about forty years' experience in the profession, he took it to be quite clear, that a court of equity in cases of this sort, as well as with respect to all cases where matters of fact are in question, has a right itself to determine on the fact without the intervention of a jury. "If "the evidence which is before a court of equity is satisfactory on "the fact, I never can admit that that court is bound to send "any such case to a jury." (7) Again, C. B. Richards has since said, it is of the essence and constitution of equity to decide at once on facts, except in one or two instances; as that of an heir at law disputing the validity of a will, and a rector suing for

(9) O'Connor v. Cooke, 8 Ves. R. 539.; and see per Wood B., Wightw. R. 289.

(1) Id. 316.

(2) Id. 323.

(3) Per Wood B. Wightw. R. 288. 4 Pri. R. 392. 415.

(4) 4 Pri. R.415., per Richards C.B.; and see supra, 449., and note. (5) Per Lord Eldon, in O'Connor v. Cooke, 8 Ves. 539.

(6) 4 Pri. R. 415.; see also 2 Bla. R. 1259. per De Grey

(7) Bullen v. Michell, 2 Pri. R. 466. 469. (1816.) In this case it was in effect decided that the satisfaction of the majority of the judges of the exchequer is the satisfaction of the court. See Minor Canons of St. Paul's v. Morris, 2 Pri. R. 418. ; id. 467. cited by Lord Eldon; and 2 Pri. R. 25.