* 3. Who or what dis charged from payment in kind. 1. By real composiions. 3. We observed that tithes are due to the of common parson right, unless by special exemption; let us, therefore, see, thirdly, who may be exempted from the payment of tithes, and how lands, and their occupiers, may be exempted or discharged from the payment of tithes, either in part or totally, first, by a real composition; or, secondly, by custom or prescription.17 First, a real composition is when an agreement is made between the owner of the lands, and the parson or vicar, with the consent of the ordinary and the patron, that such lands shall for the future be discharged from payment of tithes, by reason of some land or other real recompense given to the parson, in lieu and satisfaction thereof. 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.18 But, experience showing [29] 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.19 So that now, m 2 Inst., 490 Regist., 38; 13 Rep., 40. by unity of possession of the land out of (17) Where the owner of lands natu- (18) As to real compositions in general, see Mirehouse, 157. In order to establish it in evidence, the deed itself, executed between the commencement of the reign of Richard the First and the 13 Eliz., must be produced, or such evidence from whence, independent of mere usage, it may be inferred that the deed once existed, for otherwise every bad modus might be turned into a good composition. (3 Bac., 217; 2 Anst., 372; Wightw., 324; 2 Bos. & P., 206; 1 Dan., 10; 1 Price, 253; 3 Id., 608; 4 Id., 143; 4 Madd., 140; 2 You. & J., 548; Gwil., 587.) Without such evidence of a deed, a composition real can not be proved by reputation, though corroborated by evidence of non-payment of tithes; and a deed creating a composition real will not be presumed from payment for two hundred years of a sum of £20 in lieu of tithes. (4 Mad., 140; 2 Bos. & 206; Mirehouse, 156, 157, 159; but see 5 Ves. J., 187.) Where a composition real is to be presumed, there must appear to be mutual loss or gain on the respective parts of the parson and occupier. (3 Bos. & P., 207.) See n. (29), p. 32, infra. (19) And a composition made since that act, though confirmed by a decree in the Court of Chancery, did not bind the successor. (2 Wooddes., 107; 2 Swanst., 310; 2 You. & C., 421.) But by Lord Tenterden's act (3 & 4 Will. IV., c. 100, s. 2) every composition for tithes is declared valid, which, before the passing of the act, had been made or confirmed by the decree of any court of by virtue of this statute, no real composition made since the 13 Eliz. is good for any longer term than three lives, or twentyone 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.20 modo deci Secondly, a discharge by custom or prescription is where, 2. By pretime out of mind, such persons or such lands have been, either scription de partially or totally, discharged from the payment of tithes. And mandi. 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. This custom, or prescription, is either de modo decimandi or de non decimando. A modus decimandi, commonly called by the simple name of of a modus. a modus only, is where there is by custom a particular manner of tithing allowed, different from the general law of taking tithes in kind, which are the actual tenth part of the annual increase. This is sometimes a pecuniary compensation, as two pence an acre for the tithe of land: sometimes it is a compensation in work and labor, 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: 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 a good and sufficient modus, the following rules [ 30 ] must be observed. 1. It must be certain and invariable," for Rules repayment of different sums will prove it to be no modus, that is, specting corno original, real composition; because that must have been tain, one and the same, from its first original to the present time. 2. The thing given in lieu of tithes must be beneficial to the beneficial to parson, and not for the emolument of third persons only: thus parson, a modus, to repair the church in lieu of tithes, is not good, be n 1 Keb., 602.5 equity in England, in a suit to which the ordinary, patron, and incumbent were parties, and which had not since been set aside, abandoned, or departed from. (20) With regard to compositions entered into between the tithe-owner and any parishioner for the latter to retain the tithes of his own estate, it has been decided that they are analogous to leases from year to year between landlord and tenant; and if they are paid, without or after the expiration of an agreeVOL. II.-C 。 1 Roll. Abr., 649. ment, for a specific time, they can not 33 different from thing for. one species others; rable, cause 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. 3. It must be something different from the thing comcompounded pounded for :P one load of hay, in lieu of all tithe hay, is 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 A modus for composition to have existed. 4. One can not be discharged from of tithe no payment of one species of tithe by paying a modus for another. discharge of 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 must be du- never be a discharge for the other. 5. The recompense must be in its nature as durable as the tithes discharged by it; that is, an inheritance certain: 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; for possibly the house 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: as, if the real value of the tithes be £60 per annum, and a modus is suggested of £40, this modus will not be established; though one of 40s. might have been valid. 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 [23] of law. For, in these cases of prescriptive or customary moduses, it is supposed that an original, real 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, Time of le- and that from thence such usage was derived. Now time of gal memory memory hath been long ago ascertained by the law to commence from the beginning of the reign of Richard the First ;u21 and any and not rank. with the reign of Rich. I., A.D. 1189. P 1 Lev., 179. a Cro. Eliz., 446; Salk., 657. u 2 Inst., 238, 239. This rule was (21) The limits of legal memory were formerly fluctuating. They were long made to depend upon the period for bringing a writ of right, which, till 23 Hen. VIII., was not any certain period be fore the commencement of the suit, but dated from some historical event, fixed from time to time, as the beginning of the reign of Henry I., the return of King John out of Ireland, the journey of King Henry III. into Normandy, or the coronation of King Richard I. The last in a writ of right. But since, by the statute 32 Hen. VIII., c. 2, this period (in a writ of right) hath been very rationally reduced to 60 years, it seems unaccountable that the date of legal prescription or memory should still continue to be reckoned from an era so very antiquated. See Litt., § 170. 34 Hen. VI., 37. 2 Roll. Abr., 269, pl. 16. epoch being fixed by the statute of Westm., 2, c. 46, as the time after which seizin must be proved, to maintain a writ of right, it was from thence adopted as the commencement of legal memory. When the 32 Hen. VIII. provided that there should be a progressive period of limitation for writs of right, legal memory ought, pursuing the existing analogy, to have been considered as intending a period of sixty years next before the dispute arose. But, unfortunately, the custom may be destroyed by evidence of its non-existence in any part of the long period from that time to the present; 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 era, so, also, it is destroyed by carrying in itself this internal evidence of a much later original.22 non deci A prescription de non decimando is a claim to be entirely 3. By predischarged of tithes, and to pay no compensation in lieu of them. scription de Thus the king, by his prerogative, is discharged from all tithes. mando. So a vicar shall pay no tithes to the rector, nor the rector to the vicar, for ecclesia decimas non solvit ecclesia.w23 But these personal privileges (not arising from or being annexed to the land) are personally confined to both the king and the clergy; for their tenant or lessee shall pay tithes, though in their own occupation their lands are not generally tithable. And, generally speaking, it is an established rule, that, in lay hands, modus de non decimando non valet.y24 But spiritual persons or [ 32 ] corporations, as monasteries, abbots, bishops, and the like, were ▾ Cro. Eliz., 511. w Cro. Eliz., 479, 511; Sav., 3; Moor., 910. analogy to writs of right was dropped, and the reign of Richard was adhered to, and is considered the commencement of legal memory for all purposes at the present day. (1st Real Prop. Rep., p. 51; 2 Roll. Ab., Prescription, 269, fol. 14.) As to the modern contrivances and enactments for the purpose of escaping from this inconvenient rule, vide infra, p. 266, n. (10). (22) (See 2 Russ. & M., 102; 4 You. & C., 283, 269.) To constitute a good modus, it should be such as would have been a certain, fair, and reasonable equivalent or composition for the tithes in kind, before the year 1189, the commencement of the reign of Richard I.; and, therefore, no modus for hops, turkeys, or other things eo nomine, introduced into England since that time, can be good (Bumb., 307); but (per Ellenborough, C. J.) there may be a good modus to include turkeys, though the bird have been introduced into this country within time of legal memory, as if there were a modus "for all domestic fowl." (12 East, 35.) The question of rankness, or, rather, * Cro. Eliz., 479. y Ibid., 511. [Godb., 211; 2 Jac. & W., 527.] modus or no modus, is a question of fact, tween spiritual persons in the same par- (24) For modus read præscriptio. (See How to prove exemptions. a always capable of having their lands totally discharged of tithes by various ways; as, 1. By real composition; 2. By the pope's bull of exemption;25 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. Though, upon the dissolution of abbeys by Henry VIII., most of these exemptions from tithes would have fallen with them, and the lands become tithable 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.26 And from this original have sprung all the lands, which, being in lay hands, do at present claim to be tithe free; for, if a man can show his lands to have been such abbey lands, and also immemorially 27 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;28 for abbey lands, z Hob., 309; Cro. Jac., 308. (25) See Hob., 309; 2 Jac. & W., 528; 2 Ea. & Yo., 189. (26) This provision is peculiar to that statute, and, therefore, all the lands belonging to the lesser monasteries (i. e., such as had not lands of the clear yearly value of £200), dissolved by the 27 Hen. VIII., c. 28, are now liable to pay tithes. (Comyn's Dig., Dism., E. 7.)[CHRISTIAN.] And in like manner are the lands belonging to the numerous alien priories and abbeys, dissolved in 1415, by the stat. 2 Hen. V., liable to tithes. (See 2 Jac. & W., 528, 534.) But the lands of the lesser monasteries, which were surrendered after the 27 Hen. VIII., c. 28, and of the Knights of St. John, given to the king by the stat. 32 Hen. VIII., c. 24, are within the 31 Hen. VIII., c. 13, s. 21. (1 You. & C., 19; 6 Bac. Ab., 756) (27) Where it was proved that land, belonging to one of the greater monasteries at the time of dissolution, had long previously been in lay hands, this was held to destroy the claim of exemption, by proving that there had been no immemorial prescription by the monastery. (2 Jac. & W., 525.) a 2 Rep., 44; Seld., Tith., c. 13, s. 2. (28) Mere non-payment of a particular species of tithe, or proof that no tithes in kind have ever been rendered within living memory, does not afford sufficient evidence of the exemption from tithe (Gwill., 757; 1 Mad. R., 242; 4 Price, 16); but the party insisting on the exemption must show the ground of discharge by deducing title from some ecclesiastical person, and thus showing the origin of the exemption. (2 Co., 44; Bumb., 325, 345; 3 Anst., 762, 945; see 1 Russ. & M., 529.) And the same rule applied where the claim of exemption was against a lay impropriator, as against an ecclesiastical rector; and against the former no presumption of a grant or conveyance of the tithes, so as to discharge the land, was entertained upon evidence of non-payment merely, for any length of time; further evidence was required pointing to some deed of grant. Scott, 1; 9 Bligh, 471.) But tithes in lay hands, or belonging to a corporation aggregate, are now subject to the same limitation that regulates the enforcement of claims to other hereditaments, as well between two persons claiming the right to the tithes as between the tithe owner and the occupier. (Vide infra, p. 262.) (2 |