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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 títhe:

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 id. for every milch cow will discharge the

tithe of milch kine, but not of barren cattle ; for tithe is, of com

mon 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 evi

dence, drawn from the improbability of the fact, and not a rule [ 23 ] of law. For, in these cases of prescriptive or customary mo

duses, it is supposed that an original, real composition was an-
ciently made ; which being lost by length of time, the immemo-

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

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.


gal memory commences with the reign of Rich. I., A.D. 1189.

p 1 Lev., 179.

in a writ of right. But since, by the 9 Cro. Eliz., 446 ; Salk., 657. statute 32 Hen. VIII., c. 2, this period r 2 P. Wms., 462. s 11 Mod., 60. (in a writ of right) hath been very ra

+ Pike v. Dowling, Hil., 19 Geo. III., tionally reduced to 60 years, it seems C.B. [2 W. Bl., 1257.]

unaccountable that the date of legal u 2 Inst., 238, 239. This rule was prescription or memory should still conadopted when, by the statute of Westm., tinue to be reckoned from an era so very 1 (3 Edw. I., c. 39), the reign of Rich- antiquated. See Litt., $ 170. 34 Hen. ard I. was made the time of limitation VI., 37. 2 Roll. Abr., 269, pl. 16.

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(21) The limits of legal memory were epoch being fixed by the statute of formerly fluctuating. They were long Westm., 2, č. 46, as the time after which made to depend upon the period for seizin must be proved, to maintain a writ bringing a writ of right, which, till 23 of right, it was from thence adopted as Hen. VIII., was not any certain period be- the commencement of legal memory. fore the commencement of the suit, but when the 32 Hen. VIII. provided that dated from some historical event, fixed there should be a progressive period of from time to time, as the beginning of limitation for writs of right, legal nemthe reign of Henry I., the return of King ory ought, pursuing the existing analoJahn out of Ireland, the journey of King gy, to have been considered as intending Henry III. into Normandy, or the cor- a period of sixty years next before the onation of King Richard I. The last 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

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, modús de non decimando non valet.y24 But spiritual persons or [ 32 ] corporations, as monasteries, abbots, bishops, and the like, were v Cro. Eliz., 511.

Cro. Eliz., 479. w Cro. Eliz., 479, 511; Sav., 3; Moor., y Ibid., 511. [Godb., 211; 2 Jac. & 910.

W., 527.] analogy to writs of right was dropped, modus or no modus, is a question of fact, and the reign of Richard was adhered which courts of equity will send to a jury, to, and is considered the commencement unless the grossness of the modus is so of legal memory for all purposes at the obvious as to preclude the necessity of present day. (1st Real Prop. Rep., p. it. (2 Bro., 163; 1 Bl., 420; 2 Id., 1257; 51 ; 2 Roll. Ab., Prescription, 269, fol. 3 Gwill., 1058, 1192 ; Mirehouse, 180 to

As to the modern contrivances and 186.)—[CHRISTIAN.] enactments for the purpose of escaping from this inconvenient rule, vide infra, tween spiritual persons in the same par

(23) This rule holds good only as bep. 266, n. (10).

ish; for, without prescription, a parson (22) (See 2 Russ. & M., 102 ; 4 You. who has glebe land in another parish & C., 283, 269.) To constitute a good 653 ; Seiden, p. 76; 4 Price, 65.)

must pay tithes for it. (1 Roll. Ab., modus, it should be such as would have been a certain, fair, and reasonable (24; For modus read prescriptio. (See equivalent or composition for the tithes 4 You. & C., 285.) And this maxim, in kind, before the year 1189, the com- that a layman shall not prescribe to be mencement of the reign of Richard I.; discharged of tithes, is so inflexible, that and, therefore, no modus for hops, tur- the judges have felt themselves bound to keys, or other things eo nomine, intro- violate in its favor the ordinary rules of duced into England since that time, can presumption, and to hold that no length be good (Bumb., 307); but (per Ellen- of enjoyment, tithe free, shall raise a preborough, C. J.) there may be a good mo- sumption of a grant against a lay imdus to include turkeys, though the bird propriator, because to allow such a prehave been introduced into this country sumption would be to allow, in effect, a within time of legal memory, as if there prescription (2 Scott, 1); and yet in were a modus "for all domestic fowl.” every other case mere length of enjoy-. (12 East, 35.)

ment is sufficient to found the presumpThe question of rankness, or, rather, tion of a grant upon.

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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 immemorially27 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. a 2 Rep., 44; Seld., Tith., c. 13, s. 2.

How to prove exemptions.

(25) See Hob., 309; 2 Jac. & W., 528; (28) Mere non-payment of a particular 2 Ea. & Yo., 189.

species of tithe, or proof that no tithes

in kind have ever been rendered within (26) This provision is peculiar to that living memory, does not afford sufficient statute, and, therefore, all the lands be evidence of the exemption from tithe longing to the lesser monasteries (i. e., (Gwill., 757; 1 Mad. R., 242 ; 4 Price, such as had not lands of the clear year- 16); but the party insisting on the exly value of £200), dissolved by the 27 emption must show the ground of disHen. VIII., c. 28, are now liable to pay charge by deducing title from some ectithes. (Comyn's Dig., Dism., E. 7.) — clesiastical person, and thus showing the (CHRISTIAN.] And in like manner are origin of the exemption. (2 Co., 44 ; the lands belonging to the numerous Bumb., 325, 345; 3 Anst., 762, 945; see alien priories and abbeys, dissolved in i Russ. & M., 529.) And the same rule 1415, by the stat. 2 Hen. V., liable to applied where the claim of exemption tithes. (See 2 Jac. & W., 528, 534.) was against a lay impropriator, as against But the lands of the lesser monasteries, an ecclesiastical rector; and against the which were surrendered after the 27 former no presumption of a grant or conHen. VIII., c. 28, and of the Knights of veyance of the tithes, so as to discharge St. John, given to the king by the stat. the land, was entertained upon evidence 32 Hen. VIII., c. 24, are within the 31 of non-payment merely, for any length Hen. VIII., c. 13, s. 21. (1 You. & C., of time; further evidence was required 19; 6 Bac. Ab., 756.)

pointing to some deed of grant. (2

Scott, 1 ; 9 Bligh, 471.) But tithes in (27) Where it was proved that land, lay hands, or belonging to a corporation belonging to one of the greater monas- aggregate, are now subject to the same teries

at the time of dissolution, had long limitation that regulates the enforcement previously been in lay hands, this was of claims to other hereditaments, as well held to destroy the claim of exemption, between two persons claiming the right by proving that there had been no im- to the tithes as between the tithe ownmemorial prescription by the monastery, er and the occupier. (Vide infra, p. (2 Jac. & W., 525.)


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.29

(29) “ By the fundamental principles demanded by any corporation sole (othof the common law, all land is equally er than the crown), upon evidence showcharged with tithes; to suppose a single ing the payment of the modus, or, in case acre not charged is quite a mistake ; of claim to exemption or discharge, the from the earliest periods tithes were enjoyment of the land without render of every where due to somebody; even in tithes, or any thing in lieu thereof, during extra-parochial places they are payable sixty years, or such greater period as to the king; and although when in spir- shall include two incumbencies, and the itual hands no tithes were paid, that was three years next following the comfrom the rule ecclesia decimas non sol- mencement of a third incumbency. But vit ecclesiæ,' and not from any non-charge proof that the modus was rendered, or inherent in the land. The land was exemption enjoyed under some express still liable, though the payment was sus- agreement in writing, will be sufficient .pended. These lands, being then liable to defeat the general claim. at the common law, could be exempt In the case of a claim of tithes in kind only by some of the modes that have by the crown, or by any person or corbeen mentioned; real composition, bull, poration not being a corporation sole, it order, unity of possession, grant, or pre- must be shown that the modus was paid, scription." (Per Sir T. Plumer, M. R., or enjoyment had, during thirty years 2 Jac. & W. 528.) The fact of exemp- next preceding the demand, unless some tion will, however, be presumed upon payment or render inconsistent with the proper evidence, in favor of lands shown claim of modus or exemption can be to have been abbey lands, within the proved to have taken place at some time stat. 31 Hen. VIII. Upon proof of usage prior to the thirty years. But if the of non decimando in modern times, in re- proof of enjoyment or render of modus spect of such lands, if unopposed or not be carried back for sixty years, the claim effectually controverted by evidence of shall be deemed absolute and indefeasia contrary usage in earlier times, it ble, unless it appear that some agreewould be inferred that the lands had ment in writing was the origin of the been held exempt from tithe at the time modus or exemption. of the dissolution of the monastery to The 2d section of the act confines its which they were proved to have be- operation to cases where the modus, exlonged. But such proof would not avail emption, or discharge shall be proved to against a terrier, survey, valuation, ac- have existed, and been acted upon at or count, or other evidence of more ancient within one year before the passing of date. No time of definite duration was the act; but as tithe will be altogether fixed by law, which should carry with commuted before the expiration of sixty it a title to exemption in spite of more years from the passing of the act, this ancient evidence to the contrary. (See singular restriction will have no very 1 Hare, 203; 1 Sim., 280; 1 You. & J., important operation. The act contains, 94; 1 Russ. & M., 529.) In this state also, special provisions for cases of temof the law, Lord Tenterden's act (2 & porary exemption under leases, &c., unity 3 Will. IV., c. 100) was passed, under of enjoyment, and disabilities. the title of " An Act for shortening the The 7th section enacts that, in an actime required in claims of modus deci- tion or suit, it shall be sufficient to almandi, or exemption from a discharge of lege that the modus, or exemption, or tithes." The preamble is as follows: discharge claimed was actually exercised “Whereas the expense and inconven- and enjoyed for such of the periods menience of suits instituted for the recovery tioned in the act as may be applicable to of tithes may and ought to be prevented the case; and any proviso, exception, by shortening the time required for the disability, contract, agreement, deed, or valid establishment of claims of a modus writing mentioned in the act, or any decimandi, or exemption from or dis- other matter of fact or law, not inconcharge of tithes.” It then enacts that sistent with the simple fact of the exer“all prescriptions and claims of or forcise and enjoyment of the matter claimany modus decimandi, or of or to any ex- ed, must be specially pleaded. emption from or discharge of tithes by (Tithes not belonging to a spiritual or composition real or otherwise,” shall be eleemosynary corporation sole, are also sustained and be deemed good and val- within the provisions of the Statute of id in law, where tithes in kind shall be Limitations, 3 & 4 Will. IV., c. 27.)

III. Right of common.

III. Common, or right of common, appears, from its very definition, to be an incorporeal hereditament, being a profit 30

Very opposite constructions have been was not sufficient, on the general ground put upon the most important enactment that the act did not dispense with the of the above statute by different judges. necessity of showing that there was On the one hand, it is contended that some legal ground of exemption, i. e., a the end expressed in the preamble, title derived from some of the greater namely, the shortening of the time re- monasteries, and on the special ground quired for the proof of claims of modus that the tithable matters claimed were or exemption, is the only end contem- unknown in Ergland until long after the plated by the act, and that all other mat- time of legal memory, whereas it was ters required to be proved must still be admitted that the land was liable to the proved as before ; so that the act mere- render of tithes in kind of all other tithly prevents the party claiming the titles able matters, while the exemption claimfrom rebutting the presumption which ed under the act must be on the ground arises from enjoyment without render of a supposed contract commencing beof tithes in kind by evidence anterior to fore the time of legal memory. Such a the commencement of the sixty years, contract, namely, not to pay tithes of without relieving the party who sets up tithable matters to be thereafter introa modus or exemption from the necessi- duced, would be void for want of conty he was always under of giving other sideration, being a contract to take part evidence from which to infer some legal in consideration of the whole, although origin of his claim, which evidence must a modus for all tithes of matters of whatnecessarily, in cases of claim to exemp- ever kind produced by the land would tion, be of facts of great antiquity. On be good. the other hand, it has been said, that the In the case of Fellowes v. Clay, Q. B., proof of enjoyment for the period men- 1843 (7 Jurist, 343), the party claiming tioned in the act is alone sufficient to exemption proved non-payment of tithes entitle a party to exemption from tithes: during the requisite period, but alleged a construction which would give to the no other ground of exemption; and, aftact the effect not merely, according to er two arguments, the court was divided its title and preamble, of shortening the in opinion whether this was sufficient; time required in claims of this nature, Denman, C. J., and Williams, J., holdbut of actually allowing a prescription, ing that the claim to exemption under where formerly none was possible, un- the statute was good; Coleridge and der any circumstances, or upon any evi- Patteson, JJ., holding that it was not, dence of enjoyment. In the case of on the ground that the preamble to the Salkeld v. Johnston (1 Hare, 196), a vic- act showed that it was intended to remar had filed the bill for an account of edy the expense and inconvenience of tithes of turnips, potatoes, and artificial suits for tithes, by shortening the time grasses not made into hay, and other required for the valid establishment of green crops.

The defendants relied claims of a modus or exemption; that, simply on non-render within the time beyond shortening the time, the act was mentioned in Lord Tenterden's act. It not intended to operate, and that the was proved that the rector had received enacting part was consistent with this great tithes, and that the vicar had re- construction. The consequence which ceived tithes of some tithable matters would follow from this construction is, arising within the parish different from that the objections of uncertainty, identhe matters claimed in the bill. Sir J. tity, &c., may still be urged against a Wigram, V. C., held that the defense modus set up under the act.

(30) The proper description of a com- mere easement. (5 Ad. & El., 758; 1 mon is, that it is a profit à prendre, a Nev. & P., 172. See 3 Ad. & El., 554 ; 3 right to take or sever something valua- Nev. & P., 257 ; 7 Mee. & W., 63.) The ble from the land of another; and this distinction has been rendered important distinguishes it from mere easements, by the recent Statute of Prescriptions. which are rights merely to use or inter- (Vide infra, p. 263.) Another peculiarfere with the enjoyment of another's ity of a right of common is, that it improperty. Thus, a right of way, a right plies no duty on the part of the owner to free air, light, &c., is an easement. of the soil, beyond the negative duty of A right to wash and water cattle at a permission ; it lies, in the old phrase, pond, and to take thence water for do- not in render, like a rent, but merely in mestic purposes, has been held to be a prendre.

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