ferent from the pounded for, nite things, 3. It must be something different (35) from the thing com- something difpounded for (p): one load of hay, in lieu of all tithe hay, thing comis no good modus; for no parson would bonâ fide make a composition to receive less than his due in the same species of tithe and therefore the law will not suppose it possible for such composition to have existed. 4. One cannot be for certain defidischarged from payment of one species of tithe, by paying a modus for another (q). Thus a modus of 1d. for every milch cow will discharge the tithe of milch kine, but not of barren cattle for tithe is, of common right, due for both; and therefore a modus for one shall never be a discharge for the other. 5. The recompense must be in its nature as as durable as durable (36) as the tithes discharged by it; that is, an in- charged by it, heritance certain (r): and therefore a modus that every inhabitant of a house shall pay 4d. a-year, in lieu of the owner's tithes, is no good modus (37): for possibly the house (4) Cro. Eliz. 446; Salk. 657. (r) 2 P. Wms. 462. (p) 1 Lev. 179. (35) See the last page, and note (32) thereto. Long before the act so often cited in the notes to this chapter, a modus for payment of thirty eggs once a-year to the parson, in lieu of all tithes of eggs, was established. (Lee v. Collins, 1 Rolle's Abr. 648.) So, a modus to pay three eggs for every cock and hen, drake and duck, in lieu of tithe eggs, and chickens and ducklings, was held good. (Brinklow v. Edmonds, Bunb. 308.) These decisions were accounted for upon a very intelligible principle, namely, that the parson was sure of his modus, whether there were any eggs laid, or poultry hatched, in the parish, or not. (Hill v. Vaux, Salk. 656.) Would not the same reasoning justly apply to the modus stated in the text above, of "one load of hay, in lieu of all tithe hay?" The parson would be sure of his modus, whether any hay were made or not. Since the passing of the statute of 2 & 3 Gul. IV. c. 100, no question can be raised as to the clear validity of any modus, if it can be shown that the facts of the case under consideration bring it with- (36) That, although the recom- (37) It is not to be understood that a modus is necessarily bad, because its payment depends upon the fact of residence, or non-residence. In a parish, where every resident occupier of pasture land was liable to tithes in kind, a modus that if any occupier of land lived out of the parish, he should pay four-pence an acre for all pasture land within the parish, has been repeatedly held to be good. (Chapman v. Monson, 2 P. Wms. 575; S. C. Mosely, 286, and 1 Eq. Ca. Abr. 368.) the tithes dis and not too large; may not be inhabited, and then the recompense will be lost. 6. The modus must not be too large, which is called a rank modus (38): as if the real value of the tithes be 601. per annum, and a modus is suggested of 407., this modus will not be established; though one of 40s. might have been valid (s). Indeed, properly speaking, the doctrine of rankness in a modus, is a mere rule of evidence, drawn from the improbability of the fact, and not a rule of law (t). For, in these cases of prescriptive or customary moduses, it is supposed that an original real (39) composition was anciently made; which being lost by length of time, the immemorial usage is admitted as evidence to show that it once did exist, and [31] that from thence * such usage was derived. Now time of memory hath been long ago ascertained by the law to commence from the beginning of the reign of Richard the first (u); and any custom may be destroyed by evidence of its non-existence in any part of the long period from that time to the present (40); wherefore, as this real composition is supposed to have been an equitable contract, or the full value of the tithes, at the time of making it, if the modus set up is so rank and large, as that it beyond dispute exceeds the value of the tithes in the time of Richard the first, this modus is (in point of evidence) felo de se, and destroys itself. For, as it would be destroyed by any direct evidence to prove its non-existence at any time since that æra, so also it is destroyed by carrying in itself this internal evidence of a much later original (41). mando-a claim tithes, and to sation in A prescription de non decimando (42) is a claim to be or, de non decientirely discharged of tithes, and to pay no compensation in to be entirely lieu of them. Thus the king by his prerogative is dis- discharged of charged from all tithes (v). So a vicar shall pay no tithes pay no compento the rector, nor the rector to the vicar, for ecclesia deci- of them. mas non solvit ecclesiæ (w) (43). But these personal privi- who are perleges (not arising from or being annexed to the land) are ed from tithes. personally confined to both the king and the clergy: for their tenant or lessee shall pay tithes (44), though in their (v) Cro. Eliz. 511. (w) Cro. Eliz. 479, 511; Sav. 3; Moor, 910. sonally discharg mory, carries with it internal evidence of a later origin, if it profess to cover the tithe of articles specified by name in the alleged modus, but which were unknown, or not cultivated, or bred, in this country in the year 1189. But, though the application of the old law upon the subject was plain enough, it was held proper, whenever there was any sort of doubt as to the matter of fact, to refer that question to a jury. (Davies v. Mosely, M'Clel. 145; Bertie v. Beaumont, 2 Pr. 312.) Since the passing of the statute cited, this point, it may be hoped, is finally set at rest. (42) See ante, the third note to p. 28. (43) This maxim, it was said by Richards, C. B., merely applies to the case of a rector and vicar of the same church and parish, where the ecclesia would be paying tithes to itself. In no other case, it was added, can an ecclesiastical person rest his exemption upon this maxim, but must prescribe de non decimando. (Warden and Minor Canons of St. Paul's v. The Dean, 4 Pr. 77, 78.) (44) Our author, with proper caution, restricts this to cases in which the privilege of exemption is personal; and in such cases it is very like an identical proposition to say, that it does not extend to other than the persons privileged. But the privileges of the king, or of a bishop, or eccle- or corporations, how discharged of tithes. own occupation their lands are not generally titheable (w). And, generally speaking, it is an established rule, that, in Spiritual persons lay hands, modus (45) de non decimando non valet (x). But spiritual persons or corporations, as monasteries, abbots, bishops, and the like, were always capable of having their lands totally discharged of tithes by various ways (y) (46): as, 1. By real composition: 2. By the pope's bull of exemption: 3. By unity of possession; as when the rectory of a parish, and lands in the same parish, both belonged to a religious house, those lands were discharged of tithes by this unity of possession: 4. By prescription; having never been liable to tithes, by being always in spiritual hands: 5. By virtue of their order; as the knights templars, cistercians, and others, whose lands were privileged by the pope with a discharge of tithes (z). Though upon the dissolution [ 32 ] (w) Cro. Eliz. 479. (y) Hob. 309; Cro. Jac. 308. during the minority of Edw. VI., and (z) 2 Rep. 44; Seld. Tith. c. 13, s. 2. phenson v. Hill, 3 Burr. 1278.) Of course, these last resolutions apply equally to the tenants of any other person, or corporation, capable of prescribing de non decimando, as to the tenants of a bishop. And it seems to admit as little doubt, that where the land itself is exempt, it is discharged in whatever hands it may happen to be. (Benning v. Dowce, Bunb. 26.) (45) It is not very accurate to speak of a modus de non decimando; a modus, as our author has taught us, is a particular manner of tithing; where the privilege asserted is that of not paying tithes at all, præscriptio is the more proper word, as the commencement of the paragraph shows Blackstone to have been well aware; (and see post, p. 263). It would be idle to notice so trivial an oversight, if some of the books of practice had not copied it: by which a non-professional reader might be misled into supposing, that modus and prescription are, in all cases, convertible terms. (46) See ante, the third note to p. 28. hands, formerly of abbeys by Henry VIII., most of these exemptions from tithes would have fallen with them, and the lands become titheable again; had they not been supported and upheld by the statute 31 Hen. VIII. c. 13, which enacts, that all persons who should come to the possession of the lands of any abbey then dissolved, should hold them free and discharged of tithes, in as large and ample a manner as the abbeys themselves formerly held them (47). And from this original have sprung all the lands, which, being in lay Lands, in lay hands, do at present claim to be tithe-free: for, if a man belonging to abcan show his lands to have been such abbey-lands, and also ed of tithes. immemorially discharged of tithes by any of the means before mentioned, this is now a good prescription de non decimando. But he must show both these requisites (48); for abbey-lands, without a special ground of discharge, are not discharged of course; neither will any prescription de non decimando avail in total discharge of tithes, unless it relates to such abbey-lands. beys, discharg III. Common, or right of common, appears from its very III. Common, definition to be an incorporeal hereditament: being a profit which a man hath in the land of another; as to feed his beasts, to catch fish, to dig turf, to cut wood, or the like (a). And hence common is chiefly of four sorts: pasture, of piscary, of turbary, and of estovers. common of is of four sorts: pasture-which 1. Common of pasture is a right of feeding one's beasts 1. Common of on another's land for in those waste grounds, which are is either usually called commons, the property of the soil is generally in the lord of the manor; as in common fields it is in the (a) Finch, Law, 157. (47) This provision extends not only to such possessions as vested in the king by force of the said act, but also to possessions which vested in him by the subsequent act of 32 Hen. VIII. c. 24. (Whitton v. Weston, T. Jones, 187; Star v. Ellyot, Freem. K. B. R. 299; Fosset v. Francklin, T. Raym. 225.) But, with respect to such lands of the lesser abbeys as were only exempt from tithes ratione ordinis, and as long as propriis manibus excolebantur, and which abbeys were (48) See ante, the third note to p. |
