modus, and with them, of course, all questions as to the rankness of moduses; but, as the first of the acts cited may not have its full and complete effect for more than half a century to come, it may not be superfluous to intimate, shortly, some of the leading rules on the subject of rankness.

Rankness is merely evidence, throwing suspicion upon the alleged antiquity of the payment: it forms no objection in point of law to the modus. If that can be shown, or fairly inferred, to have existed immemorially, the seeming exorbitance of the payment forms no legal objection to it. (O'Conner v. Cook, 6 Ves. 672; Chapman v. Smith, 2 Ves. sen. 515.) The question of rankness, then, is one of fact, rather than of law, and is usually sent to a jury, when the least doubt arises; indeed, a modus was never established against a parson, before the late act, without a trial at law, if he desired an issue; (Short v. Lee, 2 Jac. & Walk. 497; Williams v. Price, 4 Pr. 156;) but, where the rankness of a modus was unquestionable, and the immemorial antiquity of such excess of payment was not satisfactorily established; it was held, beyond all doubt, competent to courts of equity to decide upon such matters of fact, if they thought proper, without sending the case to a jury; and the exercise of this right was, as the law formerly stood, frequently a merciful saving of expense to all the parties. (Bishop v. Chichester, 2 Br. 163; Jee v. Hockley, 4 Pr. 88; Fisher v. Lord Graves, 1 M'Clel. & Y. 379; Goodenough v. Powell, 2 Russ. 229.)

The objection of rankness was held more safely applicable, with reference to the value of particular things, for which the modus had been set up, than as a rule for judging of the antiquity of a modus dependent on the value of lands. For instance, where

a sum of money was alleged to be payable for a lamb, or any other particular species of produce, it might be easy enough to ascertain what was, at any period of our history, the value of a lamb, or any similar article; and thence to form a fair conjecture, whether the modus prescribed for in discharge of tithe of such articles, could have had its origin in, or before, the twelfth century. But the value of land in a particular parish, and what compensation per acre for tithe it may have been reasonable to give, is a very complicated question. It is at least equally so, when the contest is as to the validity of a farm modus, and the invalidity of such a modus was very rarely, if ever, determined on the ground of rankness, without an issue, if the party setting up the modus desired one. (Atkyns v. Lord Willoughby de Broke, 2 Anst. 403; O'Conner v. Cook, 6 Ves. 672; 8 Ves. 536; Chapman v. Smith, 2 Ves. sen. 514 ;* White v. Lisle, 4 Mad. 224; and see post, note 31, to p. 29.)

For the encouragement of hus-. bandry, whether the grass growing on the headlands of corn-fields be consumed in its green state, or made into hay, the common law exempts it from payment of tithe, provided the headlands are not of greater extent than is fairly required for turning the plough. The same common law exemption extends to after-pasture, and to agistment of such beasts as the parson hath tithes of, and of the farmer's own beasts of the plough. Wood used in hedging or fencing corn of which the parson has the tithe, or for hop-poles where the parson or vicar has tithe of hops, and generally all wood employed in making or repairing the farmer's own utensils of husbandry, or in burning bricks for the purpose of repairing his homestead within the parish, was formerly held,

in like manner, to be by the common

law exempted from tithe. (2 Inst. 651, 652; Grysman v. Lewes, Cro. Eliz. 447; Green v. Hun, Cro. Eliz, 702; Jouce v. Parker, Cro. Jac. 575.) With respect to these articles, how, ever, the earlier decisions and dicta must now be qualified. In the modern case of Willis v. Stone, (1 Younge & Jerv. 274,) Chief Baron Alexander, after reviewing all the leading authorities bearing on the question, declared them to stand opposed to each other. His Lordship added, with respect to the exemption of wood used for hop-poles upon a farm, for hurdles to fold sheep, for repairing hedges, for land-draining on the farm, and for fuel in the husbandry house, in early times, the weight of authority is in favour of the rule being a rule at common law; but in after times the weight of authority is the other way. The alleged principle, that, by such an application of the article in question, the incumbent receives uberiores decimas, proves too much. The whole produce of the farm, consumed in the house, would be exempt upon the same ground. Besides, tithes are due the moment the produce is severed and can be conveniently divided; therefore, the subsequent use of the article, not perhaps to be determined for months, ought not to determine the liability to tithe. Lord Hardwicke, (in Walton v. Tryon, 1 Dick. 245,) had previously said, “the subsequent use of a thing cannot add or take away a titheable quality; a case may, indeed, be put, where the use determines whether a thing is titheable, viz. where wood is cut to be burnt in the house of a parishioner, within the parish, in which case it is not liable to tithe; but this is not by common right, but by special custom." (And see Page v. Wilson, 2 Jac. & Walk. 523; Erskine v. Ruffle, Gwill. 965.)

The statute of 2 & 3 Edw. VI. c. 13, s. 5, does give an unquestionable encouragement to agriculture, by enacting that all such barren heath or waste grounds, not discharged from tithes, but which, before that time had lain barren and paid no tithes by reason of the same barrenness, as then were or thereafter should be improved and converted into arable or meadow ground, should from thenceforth, after the end and term of seven years next after such improvement, pay tithe for the corn and hay growing thereon. By the previous section, all former legal discharges from tithe were preserved : and the section next following provides, that, if the barren lands had before that time paid any tithes, the owners should, for seven years after the improvement of the ground, pay such kind of tithe as was paid for the same before the said improvement.

The criterion for determining whether land be, or be not, of such a nature as to come within the purview of this statute, is, to inquire whether it does, or does not, require extraordinary expenditure, either in manure or labour, to bring it into a proper state of cultivation. (Warwick v. Collins, 3 Mau. & Sel. 362; 5 Mau. & Sel. 171; Kingsmill v. Billingsley, 3 Pr. 472.)

If an estate be exempt from tithes, a common appendant or appurtenant thereto is entitled to the same exemption. (Lambert v. Cumming, Bunb. 138.) But, where an estate in one parish has a right of common appurtenant in another parish, at common law, and by general presumption, all tithes, renewing upon the common are due to the incumbent of the parish in which the common is situate: custom may, however, vary this, and assign the tithe to the incumbent of the parish in which the tenement, whereto the common is appendant, is situated. (The Bishop of Carlisle v. Blain, 1 Y. & J. 131.)

The most extensive qualification, however, of the general right of the parson of a parish to receive all the tithes accruing therein, arises whenever the parsonage is appropriate, (that is, in the hands of a spiritual corpora tion, see Vol. I. p, 386, n. 32,) or im propriate, (that is, in lay hands,) and a vicarage is endowed with part of the tithes. The appointment of vicars, which had previously been matter of great scandal, was regulated by the statutes of 15 Rich. II. c. 6, and 4 Hen. IV. c. 12. These statutes direct, that every vicar shall have a competent and durable endowment, but do not further define its amount or nature: the small tithes have, in most instances, been assigned for the vicar's provision, but the usage was not invariable in this respect. The principle appears to have been, that a third of the revenues of the parsonage should be assigned to the vicar; and where the small tithes did not amount to such third share, then some part of the greater tithes were granted to make up the deficiency. Tithes of corn and hay are universally considered to be great tithes : tithe of wood is generally called a great tithe; but local usage may vary the character of this article: (Reynolds v. Green, 2 Bulst. 27; S. C. 2 Rolle's Abr. 335 :) all other predial tithes, together with all mixed and personal tithes, are ranked in the class of small tithes. (Degge, pt. 2, c. 1; Gibs. 663; Wats. c. 39.) The claims of a vicar, however, are entirely dependent upon the endowment. It is not, indeed, absolutely necessary to produce the original instrument of endowment, (Crimes v. Smith, 12 Rep. 4,) prescription may supply its place, if it be lost: nay more, although the original endowment is produced, and found not to contain a grant of certain

tithes, still, if the vicar has used, time out of mind, or for a long time, to take those tithes, our courts will, from the long possession, presume that the vicarage was, at some time or other, legally augmented: (Twyssev. BrazenNose College, Hardr. 329; Kennicott v. Watson, 2 Pr. 260, n; Woolley v. Brownhill, M‘Clel. 331, 338; Inman v. Whormby, 1 Y. & J. 555:) and wherever the vicar has enjoyed all the tithes of the class usually called small tithes, which had been theretofore produced, the fact of such enjoyment will be received as evidence that the endowment contained, in general terms, a grant of the small tithes. Whence, it will necessarily follow, he ought to receive the tithes of any new productions, or articles of modern introduction, which belong to the class falling within the description of small tithes. (Willis v. Farrer, 2 Y. & J. 227; Byam v. Booth, 2 Pr. 271.) But, in order to establish a vicar's claim to tithes not included in his endowment, the evidence of uniform perception ought to be satisfactory. (Stokes v. Edmeades, 1 M'Clel. & Y. 447.) And, notwithstanding the endowment of a vicarage expressly comprises the tithes of certain specified productions, still, if the uninterrupted perception and enjoyment of those tithes, by any other ecclesiastical person or corporation is proved, it will be presumed that the tithes in question were legally dissevered from the vicarage, before the restraining statutes of 13 Eliz. cc. 10 & 20 prohibited such alienation. (Lady Dartmouth v. Roberts, 16 East, 339; Fanshaw v. Rotherham, 1 Eden, 296.)

All ecclesiastical persons are capable of prescribing in non decimando, in respect of lands which they hold in their spiritual character; and their lessees,

it seems, though laymen, may also be discharged, if a prescription comprehending them be alleged and proved, but not otherwise. (Bishop of Lincoln v. Cooper, Cro. Eliz. 216; Wright v. Wright, Cro. Eliz. 511.) Where the rector or vicar is in possession of glebe within the parish, neither of them will pay tithe to the other in respect of such occupation, (Warden, &c. of St. Paul's v. The Dean, 4 Pr. 77,) unless there be some special provision touching the subject in the endowment of the vicarage. (Blinco v. Barksdale, Cro. Eliz. 579; Walrick v. Cropton, Gwill. 470; Sanders v. Ryall, Gwill. 537.)

The reader who is disposed to go further into the doctrine of appropriations, and to investigate the origin of, and the motives inducing, the practice, may find it learnedly discussed in the report of the great case of Grendon v.Bishop of Lincoln, Plowd. 493-503. And there is a good popular account of it in Burn's Eccl. L., under the proper title.

It has been thought convenient thus to bring together a summary of the leading exemptions from the ordinary liability to payment of tithe to the parson of the parish, instead of dividing the subject; though such a division would have accorded with the distinct mention, in the text, of several topics alluded to in this note, some part of which (it may be proper to say) is extracted from Hovenden's Supplement to Vesey, Junr.'s Reports.

(28) As to the distinction between a composition real and a modus, see the last note. Lord Hardwicke (in the case of The Attorney General v. Bowles, 3 Atk. 808) said, that "real composition does not mean any substantial permanent security for the payment of the composition; but land substituted in lieu of tithes, or a rentcharge issuing out of land." Gibson,

however, (in his Cọd. tit. 30, c. 5,) Watson, (Cl. L. 501,) and Degge, (pt. 2, c. 20,) agree that a composition, in consideration of money payments, may be a real composition, just as well as if the recompense to the incumbent consisted in, or arose out of, lands. They also say, that any other thing rendered or done for the ease, profit, and advantage of the parson or vicar to whom the tithes did belong may constitute a real composition. A great majority of the twelve Judges (if indeed any one was dissentient as to this point) appear to have considered this a just account of the meaning of the word, in Knight v. Halsey (2 Bos. & Pull. 205). It had been so held, long before, by the court of King's Bench, in the case of Sydowne v. Holme, (W. Jones, 369,) as well as by Mr. Justice Reynolds, in Chapman v. Monson, (Mosely, 286,) with whom, as appears by the report of the same case in Fitz-Gib. 120, Lord King, C., and Mr. Justice Fortescue, agreed. Such also was, apparently, the opinion of Chief Baron Eyre, in Hawes v. Swayne, (2 Cox, 179,) as it clearly was of Baron Wood, in the case of Bennett v. Neale (Wightw. 359). And that, in Lord Eldon's opinion, a money payment may be a composition real, seems a necessary inference from several passages of his Lordship's judgment, in White v. Lisle (3 Swanst. 346, 347, 348). Our author, as will be seen in page 30, thought every modus was to be referred to some real composition. The balance of authorities, therefore, seems in favour of holding, that a money payment may constitute a good composition real; and it should be recollected that the contrary dictum of Lord Hardwicke, above cited, though it has been adopted in many of the text books, was merely an obiter

dictum, and not at all the point upon which the Court had to give judgment in The Atty.-General v. Bowles, where the single question was, whether a devise of money to be laid out in land, or some real security, for the benefit of a charity, came within the statute of mortmain. It would be wrong, however, not to add, that it appears from the report of Ekin v. Pigot, (3 Atk. 298,) his Lordship's opinion on the subject was a settled one.

:

Sir S. Toller, (in his Treatise on Tithes, 224,) cites a case in which a composition to have a cow, and a certain number of beasts fed in a wood, in lieu of tithe of pannage, was held to be good but he seems to have been in doubt whether this was a real composition, or some other (undefined) species of composition. In the same page, he also cites a composition for payment of five marks in lieu of tithes, which composition was established. That an endeavour to ascertain the true meaning of a composition real is not merely a paltry quibble about words, will be evident, upon referring to the judicial authorities stated in the last note, which fully establish that the evidence by which a prescriptive payment must be supported, is materially different from that necessary to sustain a real composition.

It has been thought that Lord Coke, (2 Inst. 490,) in the 12th section of his exposition of the writ of circumspecte agatis (13 Edw. I.) countenances the opinion that nothing can be a composition real, except it arises expressly from land. But this does not appear to the present writer a necessary conclusion, at all events, from Lord Coke's language, who classes real compositions amongst decimas consuetas, which, he says, constitute a duty personal, in satisfaction of tithes; as a yearly sum of money, or

other duty. He certainly adds, there is also a real satisfaction for tithes, when land hath been given in satisfaction of tithes out of other lands. If this language is to be taken strictly, it should rather seem, Lord Coke thought that nothing but payment of a personal duty, in pursuance of an instrument of agreement, properly constituted a real composition; and that where lands have been given in discharge of the tithes of other lands, this was not a composition, but a real satisfaction. The argument, that the effect and validity of compositions real cannot be decided by the ecclesiastical courts, proves nothing; those courts have no jurisdiction to try the validity of a mere modus, if it be denied. In both cases alike, the question affects the temporal inheritance, and the decision will bind the real property: it is a question, therefore, in both cases, properly triable at common law. (Rotherham v. Fanshaw, 3 Atk. 628; Scott v. Wall, Hetl. 133; Cheesman v. Hoby, Willes, 681; Blacket v. Finney, Bunb. 176; 2nd Inst. 610.)

The not very satisfactory result of this examination seems to be, that all authorities (prior to the statutes cited in the last note,) agree, no discharge from tithes could be pleaded as a modus, which discharge had its origin within time of legal memory, or which can be traced to an instrument of composition, otherwise than by a conjecture that such was probably the foundation of the prescription; whilst some authorities hold that nothing can be a real composition, but land, or a rentcharge issuing out of land: if this last proposition be admitted, it follows that a composition by deed, for a money-payment, or other render not issuing out of land, could neither be pleaded as a modus, nor as a real composition, before the late statute