1. By composition. First, a real composition (27) is when an agreement is made between the owner of the lands, and the parson or vi 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 summary of it in Burns' 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. (27) 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 rent-charge issuing out of land." Gibson, however, (in his Cod. 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 recompence 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 rcal composition. A great car, with the consent of the ordinary and the patron, that such lands shall for the future be discharged from payment 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 FitzGib. 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 á 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, how ever, 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 of tithes, by reason of some land or other real recompence given to the parson, in lieu and satisfaction thereof (m). This was permitted by law, because it was supposed that the (m) 2 Inst. 490. Regist. 38. 13 Rep. 40. 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 agree, no discharge from tithes can be pleaded as a modus, which 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 rent-charge 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, can neither be pleaded as a modus, nor as a real composition. Such agreements may have been regularly entered into between all proper parties; the recompense to the parson may have been calculated advantageously for him at the time, its permanence abundantly secured, and its payment and receipt continued for centuries; yet it may be no defence, either as a modus or a real composition, to a demand of tithes in kind. To give it effect, if it be not a money payment, it must be referred to that hybrid class of compositions, to which Toller alludes, but to which he is at a loss to assign any generic name; and if the compensation is to be made in money, the pleader must take care not to call it a real composition; he will perhaps be safe indeed in not using the word real in any such case; for it is not likely that a composition arising out of lands would be thought ill pleaded, merely because it was not in terms called a composition real; but we have seen reason to doubt whether the best secured composition for tithes, not arising out of lands, would be listened to if it were called a real composition. Such minute technicalities seem unworthy judicial attention, but when they have obtained the sanction of a single great name, until they are unequivocally set aside by subsequent and competent authorities, they cannot be disregarded by counsel, without exposing their clients to risk. [ *29 ] 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 shewing that even this caution 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, other than for three lives, or twenty-one years. So that now, by virtue of this statute, no real composition made since the 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 one years. this kind of traffic; such compositions being now rarely heard of, unless by authority of parliament (28). sition made No real composince 13 Eliz. good for longer time than three lives or twenty 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 com (28) 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 formerly thought binding; but this notion was, in the last century, got rid of 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 is now quite As to the extent to which a parson Which is either de modo decimandi, (a particular manner of position to have been formerly made (29). This custom, or prescription, is either de modo decimandi, or de non decimando. A modus decimandi, commonly called by the simple name of a modus only, is where there is by custom a particular manner of tithing allowed (30), different from the general (29) This supposition must be confined to cases of modus decimandi; to cases of modus 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. (30) 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 it must be averred, that the farm is an ancient farm, or, at least, (what substantially amounts to the same thing), that the modus has been immemorially paid for the said farm. (Lord Stawell v. Atkins, 2 Anstr. 565). This is more especially necessary in a bill brought to establish a farm modus; and notwithstanding so much exactness of 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). particular ancient gardens or orchards within a parish; and in pleading such a modus it is not necessary to aver, in express words, that the gardens or orchards are antient, if it be alleged that a modus has been immemorially paid in respect thereof. (Blackburn v. Jepson, 17 Ves. 476. Prevost v. Benett, 2 Pr. 276). And it seems, the boundaries of antient 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). 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 have a right to decide thereon, without a trial at law, a long course of decision has established it as a matter of sound judicial discretion, to send the question of a farm modus to a jury; and that, it has been said, is the constant course. (White v. Lisle, 3 Swanst. 344, and see ante, note (26). But perhaps an exception to the universality of this rule is 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 objectionable exercise of power, to refuse an issue: but where all the testimony of any real A modus may be good for all or some weight, which could be submitted to |