Sivut kuvina
PDF
ePub

of tithes, by reason of some land or other real recompense given to the parson, in lieu and satisfaction thereof (m). This was permitted by law, because it was supposed that the clergy would be no losers by such composition; since the consent of the ordinary, whose duty it is to take care of the church in general, and of the patron, whose interest it is to protect that particular church, were both made necessary to render the composition effectual: and hence have arisen all such compositions as exist at this day by force of the common law. But, experience showing that even this cau[29] tion was ineffectual, and the possessions of the church being, by this and other means, every day diminished, the disabling statute, 13 Eliz. c. 10, was made; which prevents, among other spiritual persons, all parsons and vicars from making any conveyances of the estates of their churches, No real compo- other than for three lives, or twenty-one years. So that now, by virtue of this statute, no real composition made since the (m) 2 Inst. 490. Regist. 38. 13 Rep. 40.

sition made

since 13 Eliz. good for longer time than three lives or twentyone years.

of 2 & 3 Gul. IV. c. 100. Such
agreements might have been regularly
entered into between all proper par-
ties; the recompense to the parson
might have been calculated advanta-
geously for him at the time, its per-
manence abundantly secured, and its
payment and receipt continued for
centuries; yet it might have been no
defence, either as a modus or a real com-
position, to a demand of tithes in kind.
To give it effect, if it were not a money
payment, it must have been referred
to that hybrid class of compositions,
to which Toller alludes, but to which
he was at a loss to assign any generic
name; and if the compensation was
to be made in money, the pleader
must have taken care not to call it a
real composition. All these minute
technicalities, however, will hereafter
not claim (what they scarcely seem
ever to have deserved) judicial atten-
tion;
the second section of the statute
of 2 & 3 Gul. IV. c. 100, so repeat-
edly referred to in this note, enacts,
"that every composition for tithes
which hath been made or confirmed
by the decree of any Court of Equity

in England, in a suit to which the ordinary, patron, and incumbent were parties, and which hath not since been set aside, abandoned or departed from, shall be (and by the said act is) confirmed and made valid in law;" but it is also added, that "no modus, exemption, or discharge shall be deemed to be within the provisions of this act, unless such modus, exemption, or discharge shall be proved to have existed and been acted upon at the time of or within one year next before the passing of the act." The statute of 3 & 4 Gul. IV. c. 27, (cited in the last note,) will, at no distant period, place beyond litigation such claims to tithes, moduses, and compositions, as do not belong to eleemosynary corporations sole; and with respect to such corporations, it is to be hoped that, the tithe bill expected to be introduced in the present session of parliament, (1836,) will adjust their claims; and that the measure will be allowed to become law. It must be salutary, if it dries up this most abundant source of dissension.

13 Eliz. is good for any longer term than three lives, or twenty-one years, though made by consent of the patron and ordinary which has indeed effectually demolished this kind of traffic; such compositions being now rarely heard of, unless by authority of parliament (29).

or prescription:

Secondly, a discharge by custom or prescription, is where 2. By custom time out of mind such persons or such lands have been, either partially or totally, discharged from the payment of tithes. And this immemorial usage is binding upon all parties; as it is in its nature an evidence of universal consent and acquiescence, and with reason supposes a real composition to have been formerly made (30). This custom, or prescription, is either de modo decimandi, or de non decimando.

de modo deci

A modus decimandi, commonly called by the simple name Which is either of a modus only, is where there is by custom a particular mandi, (a partimanner of tithing allowed (31), different from the general tithing allowed

(29) Though an agreement or composition, in respect of tithes, appeared clearly not to have been entered into till after the disabling statute referred to in the text, still, when such an agreement had been confirmed by decree in Chancery, it was in early times thought binding; but this notion was, in the last century, repudiated by Lord Northington, (in the case of the Attorney General v. Cholmley, 2 Eden, 315; S. C. Ambl. 510; which was affirmed, on appeal, by the House of Lords, 7 Toml. P. C. 34,) and it was determined that such compositions, though confirmed by decrees, were not binding against succeeding incumbents. (O'Conner v. Cook, 8 Ves. 537; Attorney Generalv. Warren, 2 Swanst. 311; Attorney General v. Clements, Turn. & Russ. 61.) But the old law upon the subject has been restored by a recent statute; see the last note, ad finem.

As to the extent to which a parson or vicar may go, with the consent of the patron and ordinary, in granting a lease of his tithes ; see post, chap. 20, pp. 319-323, with the notes thereto.

(30) This supposition must be confined to cases of modus decimandi; to cases of prescription de non decimando it would be totally inapplicable that our author was perfectly aware of this will appear, two pages hence, when he comes to treat of a prescription de non decimando.

(31) The custom may either prevail throughout a whole parish, or may be restricted to a particular farm therein. When a parochial modus is set up, the boundaries of the parish are presumed to be known: but where the object is to support a farm modus, the extent and boundaries of the farm must be set forth, and before the late stat. of 2 & 3 Gul. IV. c. 100, (as to which see the last note but one,) it must have been averred, that the farm was an ancient farm, or, at least, (what substantially amounts to the same thing,) that the modus had been immemorially paid for the said farm. (Lord Stawell v. Atkins, 2 Anstr. 565.) Accuracy in setting out the boundaries is more especially necessary in a bill brought to establish a farm modus; and notwithstanding so much exactness of

cular manner of

by custom,

law of taking tithes in kind, which are the actual tenth part the general law; of the annual increase. This is sometimes a pecuniary com

differing from

description is not necessary in an answer, yet it must give some description of the particular lands, in respect of which the defendant claims to be covered by the modus: if a farm modus be so loosely pleaded as not to point to some definite estate, an account of tithes must be decreed. (Gillibrand v. Scotson, 4 Pr. 272; Scott v. Allgood, 1 Anstr. 21; Norton v. Hammond, 1 Younge & Jerv. 111.)

A modus may be good for all or some particular ancient gardens or orchards within a parish; and in pleading such a modus it was not necessary, even before the late statute, to aver, in express words, that the gardens or orchards were ancient, if it was alleged that a modus had been immemorially paid in respect thereof. (Blackburn v. Jepson, 17 Ves. 476; Prevost v. Benett, 2 Pr. 276.) And it seems, the boundaries of ancient gardens and orchards need not be set out; for, in regard to these, the denomination is a sufficient description. (Scott v. Allgood, 1 Anstr. 21.) As the extent of the land alleged to be covered by a farm modus is just as likely to be a disputed point now as it was before the passing of the late statute, the particular rules of evidence with regard to this subject are as necessary to be studied as ever they were. A farm modus for part of a farm may be valid, if the part covered by the modus be clearly distinguished; but in this and indeed in every case of farm modus, though courts of equity always maintained a right to decide thereon, without a trial at law, a long course of decision established it as a matter of sound judicial discretion before the late act, and it can hardly be deemed less discreet now, to send the question of a farm modus to a jury; that, it has been said, was the constant course. (White v. Lisle, 3 Swanst. 344; and

see ante, note (26.) But perhaps an exception to the universality of this rule was, and is, proper to be made, whenever the right depends upon the construction of ancient documents. Where witnesses can be personally examined, and it is possible that such examination may throw light upon the subject, there it would be an objec-. tionable exercise of power, to refuse an issue but where all the testimony of any real weight, which could be submitted to a jury must be submitted to them upon paper; and more especially where such evidence consists of instruments, (written, possibly, in old law Latin or French,) a court is more likely to put an accurate construction upon such instruments than a jury, and it is more properly within the province of the court to do so. In such cases, therefore, it would be only putting the parties to further and unnecessary expense, if an issue were directed. (Donnison v. Elsley, 1 M'Clel. & Yo. 26; Fisher v. Lord Graves, Ibid. 379; Jackson v. Morris, 1 Younge & Jervis, 284.) In support of farm moduses, reputation is a species of evidence which, it has been often said, courts of equity are precluded from receiving, on the ground that reputation, though admissible where all the occupiers of a whole parish are concerned, is not evidence in a question of private right. (Pritchett v. Honeybourne, 1 Y. & J. 145; Donnison v. Elsley, 1 M'Clel. & Y. 24 ; White v. Lisle, 4 Mad. 223.) However, when the last cited case was before Lord Eldon, (3 Swanst. 348,) he intimated, that it might be material to know the particular nature of the evidence, before deciding whether evidence of reputation ought or ought not to be received concerning a farm modus for instance, his Lordship thought, in order to prove the boun

pensation, as twopence an acre for the tithe of land: sometimes it is a compensation in work and labour, as, that the parson shall have only the twelfth cock of hay, and not the tenth, in consideration of the owner's making it for him (32): sometimes, in lieu of a large quantity of crude or imperfect tithe, the parson shall have a less quantity, when arrived to greater maturity, as a couple of fowls in lieu of tithe eggs; and the like. Any means, in short, whereby the general law of tithing is altered, and a new method of taking them is introduced, is called a modus decimandi, or special manner of tithing.

*

*To make good and sufficient modus, the following rules [ 30 ] must be observed. 1. It must be certain and invariable (n) (33), for payment of different sums will prove it to invariable,

(n) 1 Keb. 602.

daries of a farm, surrounded by a common, and alleged to be covered by a farm modus, it would be admissible to prove, by reputation, the boundaries of the common, coinciding with the boundaries of the farm, and by such means to prove, by approximation, the boundaries of the farm. It is obvious this would not at all break in upon the spirit of the rule, that reputation is not evidence in a question of private right. Evidence respecting the boundaries of a common, is, ex vi termini, necessarily evidence of a fact in which numbers have an interest. (See Phillips on Evid. ch. 7, s. 7.) Although the metes and boundaries of lands, in respect of which a district modus is set up, are not specified in the body of the pleadings, yet if these refer to a map of the lands, that, when the correctness of the map is proved, will be held sufficient. (Jenkinson v. Royston, 5 Pr. 504, 506; Clarke v. Jennings, 4 Gwill. 1424.)

(32) This must be borne in mind, as qualifying what our author states in the next page, namely, that "a modus must be something different from the thing compounded for." By combining the two propositions we shall arVOL. II.

rive at the true rule, (as it stood before the last act of 2 & 3 Gul. IV. c. 100, and as it still subsists, of course, in all cases not within the operation of that act,) which rule is, that no custom to pay part of the thing of which the tithe consists, can be good in discharge of the full tithe, unless a part is paid in a more beneficial manner than the law prescribes. (Hide v. Ellis, Hetl. 133; S. C. Hob. 250; Hill v. Vaux, 1 Ld. Raym. 359; S. C. 2 Salk. 656. And see ante, the note to p. 24.)

(33) When the rule of law is stated to be, that a modus ought to be as certain as the tithes in lieu of which it comes, the meaning of this, (even when the circumstances of the case at the time under consideration do not bring it within the scope of the act of 2 & 3 Gul. IV. c. 100,) is to be understood according to a common reasonable intent, but not to be weighed by grains and scruples. (Hardcastle v. Smithson, 3 Atk. 246.) In the case just cited, Lord Hardwicke referred to that of Cowper v. Andrewes, (Hob. 40,) where a modus, (for though in the report it is sometimes called a composition, it was a claim resting on prescrip

F

and which, to be good, must be certain and

parson,

be no modus, that is, no original real (34) composition; because that must have been one and the same, from its first beneficial to the original to the present time. 2. The thing given in lieu of tithes, must be beneficial to the parson, and not for the emolument of third persons only (o): thus a modus, to repair the church in lieu of tithes, is not good, because that is an advantage to the parish only; but to repair the chancel is a good modus, for that is an advantage to the parson. (0) 1 Roll. Abr. 649.

tion only,) in recompense of tithe, consisting of two parts; one (a money payment) certain; the other, a render uncertain, casual, and entirely depending upon the will of the owner of the land; (who in fact did, by his own acts, deprive the parson of this part of the recompense,) was said to be good; and where other analogous cases are mentioned. It should be observed, that in Poole v. Reynold, (Hutt. 58,) it is observed, that the case of Cowper v. Andrewes, never received final judgment upon the point in question: the opinion of the Chief Justice, however, seems to have been quite clear, as was that of Nichols, J., though it appears from the report in Moor, 863, that Winch and Warburton, Js., doubted. And see Bedingfield v. Feake, Moor, 909. But, assuredly, a modus, unless the case is brought within the operation of the late act, cannot be supported, which is so uncertain as to leave it in doubt whether the parson shall receive any recompense at all: (Carlton v. Brightwell, P. Wms. 462; Perry v. Soam, Cro. Eliz. 139 :) though it is not necessary the modus should be the same every year; (Chapman v. Monson, 2 P. Wms. 572, citing Brown's

[blocks in formation]

Andrewes, Hob. 42:) therefore, although a modus decimandi has not been yielded for twenty years, the prescription is not necessarily gone: (Nowell v. Hicks, 2 Inst. 653:) and as to variations of payment arising out of different systems of cultivating the land, these will never affect the subsistence of the modus. (Cart v. Hodgkin, 3 Swanst. 164, n.; Brown's case, Godb. 194; The Parson of Peykirke's case, Dyer, 349 b, the particulars of which, relating to the point now in discussion, are more distinctly stated in Hob. 44.) Perhaps, the true rule, in cases not within the provisoes of the late statute, may be, not that a modus must be certainly payable in all events, but that, although its payments or non-payments may depend upon specified contingencies, still, when those contingencies do arise, the amount of the modus, under the actual circumstances, may be clearly ascertained. (Chapman v. Monson, Mosely, 286.) Such a case is plainly distinguishable from that in which it was resolved, that a prescription to pay a modus of one penny, or thereabouts, in lieu of tithes of each acre of land, was bad. (2 Rolle's Abr. 265.)

(34) As many, perhaps most moduses, consist of pecuniary recompenses, our author is clearly to be added to the number of authorities who hold, that a render not arising out of lands may be a real composition. See ante, the note to p. 28.

« EdellinenJatka »