a method of endowing monasteries, which seems to have been devised by the regular clergy, by way of substitution to arbitrary consecrations of tithes (1). (1) In extraparochial places, the king, by his royal prerogative, has a right to all the tithes. (See Book i. p. 113. 284). of the Abbot of Tewkesbury, cited in Prowse's case, 4 Leon. 47). Whenever the right to tithes, and the occupation of the land whence they arise, unite, a suspension of actual payment must, no doubt, result; but, unless the unity of possession has been in fact, or according to legal presumption, perpetual, the abstract right to tithes subsists; and the distinct actual enjoyment thereof will be revived, whenever the possession is severed. (Fox v. Bardwell, Com. 511. Anon. Dyer, 43 a). And as the tithes in such cases are considered as an interest subsisting independently, notwithstanding the unity of possession of the land; a previously established modus, though its payment must, of course, be suspended, will not be destroyed by such unity of possession. Chambers v. Hanbury, Moor, 528). It has been said, that a county, or hundred, or district, may prescribe in non decimando, but this is much too broadly laid down. With respect to articles which are titheable de jure, no such prescription, in any sense of the word, holds. To a claim of tithe of articles which are only titheable by custom, indeed, a custom de non decimando is, of course, the best answer which can be given; but this is not prescribing for a privilege of exemption, it is merely asserting that the common law rights of the parties are not affected by any prescriptive usage. (Hicks v. Woodeson, 4 Mod. 344. Page v. VOL. II. F Wilson, 2 Jac. & Walk. 523). In no other cases, but those above-mentioned as cases of exception, can a prescription in non decimando be set up in bar of the claim of tithes; (Fanshaw v. Rotherham, 1 Eden, 292. Heathcote v. Aldridge, 1 Mad. 243); for these belong, of common right, to the parson of the parish in which the titheable things are produced; and equally so, whether he be spiritual rector or lay impropriator. (Meade v. Norbury, 2 Pr. 345. S. C. 3 Bligh, 224, 252, 272. Nagle v. Edwards, 3 Anstr. 705. Boulton v. Richards, 6 Pr. 493). A defendant to a bill in equity, brought for tithes in kind, may, no doubt, have the benefit of a composition real, if he can shew it to have had existence; (Bennet v. Skeffington, 4 Pr. 146); and to have been duly entered into, with the concurrence of all proper parties; provided also he put this defence properly on the record. (Sherwood v. Winchcombe, Cro. Eliz. 293. Sands v. Drury, Cro. Eliz. 814). But, as there is a clear distinction with respect to the evidence by which a modus and a composition real may be supported, the occupier of land must not lull the tithe owner into security, by giving him reason to suppose no other defence than that of modus will be set up. (Bennet v. Neale, Wightw. 362. Miller v. Jackson, 1 Y. & J. 90. Page v. Wilson, 2 Jac. & Walk. 533). It is true that a modus may have originated, it is even probable that most moduses Lands and their occupiers may be exempted from the payment of tithes, in part or totally. 3. We observed that tithes are due to the parson of common right, unless by special exemption; let us therefore see, did originate, în a composition; (Chapman v. Monson, 2 P. Wms. 573); but then, a modus must be proved to have had existence from the remotest time of legal memory; whilst a real composition, insisted on as such, must have commenced within time of memory, and its commencement must be proved; it is not, indeed, absolutely necessary to produce the deed of composition, when it can be inferred, from satisfac tory evidence, that it did once exist; (Haws v. Swaine, 2 Cox, 179. Chatfield v. Fryer, 1 Pr. 256. Heathcote v. Mainwaring, 3 Br. 217); but still, a defendant who insists on a real composition, cannot allege mere nonpayment as evidence that such a deed once existed. (White v. Lisle, 3 Swanst. 346. Bullen v. Michell, 2 Pr. 399. Bolton v. The Bishop of Carlisle, 2 H. Bla. 263). Retainer of tithes will not, alone, justify a presumption, that a legal grant thereof must, at some time, have been made; it will be necessary also to shew the actual pernancy and receipt of the tithes, as an interest distinct from, and independent of, title to the land from which they accrue. (Scott v. Airey, 3 Gwill. 1174. Heathcote v. Aldridge, 1 Mad, 244. Meade v. Norbury, 2 Pr. 366). If a defence of composition real might be supported by evidence of usage, so as to give it the character of a modus, no defendant in a tithe suit would ever be advised to plead a modus; when, by pleading at once a composition real, he could have the advantage of shewing non-usage, and would also get rid of any objection on the score of rankness; (Ward v. Shep herd, 3 Price, 625. Estcourt v. Kingscote, 4 Mad. 141); but this is not allowed; there is an established barrier separating modus (considered as a prescriptive payment) from composition real, (which must have had its origin under an instrument made within time of memory); the two defences differ, both as to their nature and as to the proof by which they must respectively be supported: (see the next note): and, as a general rule, a court of equity will not direct an issue to try a composition real, when the defendant in the suit has, by his answer, only alleged a modus. (Bennet v. Neale, Wightw. 361. Haws v. Swaine, 2 Cox, 179). However, where there has been a mere oversight in the form of laying a modus, but the mistake does not, in point of fact, materially affect the substance and nature of the defence, courts of equity have sometimes directed an issue according to the truth of the case; (Prevost v. Bennet, 1 Pr. 239. Mallock v. Browse, Ambl. 423. Blake v. Veysie, 3 Dow, 191); and it seems not inadmissible to lay a defence in the alternative; it is, at least, a course exempt from the objection of being a surprise practised upon the tithe owner. (Leach v. Bailey, 6 Pr. 508). A modus is termed rank, when its amount is so large as to have greatly exceeded the value of the tithes at the period when Richard I. departed on his crusade, (A. D. 1189), from which period the date of legal memory is held to commence; but, this rankness is merely evidence, throwing suspicion upon the alleged antiquity of the pay thirdly, who may be exempted from the payment of tithes, ment; it forms no objection in point of law to the modus. If that can be shewn, 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 is never established against a parson without a trial at law, if he desire an issue; (Short v. Lee, 2 Jac. & Walk. 497. Williams v. Price, 4 Pr. 156); but, where the rankness of a modus is unquestionable, and the immemorial antiquity of such excess of payment is not satisfactorily established; it is, beyond all doubt, competent to courts of equity to decide upon such matters of fact, if they think proper, without sending the case to a jury; and the exercise of this right may be 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 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 composition 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 will very rarely, if ever, be determined on the ground of rankness, without an issue, if the party setting up the modus desire 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 (30). For the encouragement of husbandry, 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 It should be observed, that the ob- same common law exemption extends jection of rankness is more safely ap- to after-pasture, and to agistment of plicable, with reference to the value of such beasts as the parson hath tithes particular things, for which the modus of, and of the farmer's own beasts of has been set up, than as a rule for the plough. Wood used in hedging or judging of the antiquity of a modus fencing corn of which the parson has dependent on the value of lands. For the tithe, or for hop-poles where the instance, where a sum of money is parson or vicar has tithe of hops, and alleged to be payable for a lamb, or generally all wood employed in making any other particular species of produce, or repairing the farmer's own utensils it may be easy enough to ascertain of husbandry, or in burning bricks for what was, at any period of our history, the purpose of repairing his home and how lands, and their occupiers, may be exempted or stead 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, however, 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, and 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 is, or is 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 discharged from the payment of tithes, either in part or totally, first, by a real composition; or, secondly, by custom or prescription. 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 corporation), or impropriate, (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: (Twysse v. Brazen-Nose 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 |