3. WE obferved that tithes are due to the parfon of common right, unless by fpecial exemption; let us therefore fee, 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 compofition; or, fecondly, by custom or prefcription.

FIRST, a real compofition is when an agreement is made between the owner of the lands, and the parfon or vicar, with the confent of the ordinary and the patron, that such lands fhall for the future be difcharged from payment of tithes, by reafon of fome land or other real recompenfe given to the parfon, in lieu and fatisfaction thereof". This was permitted by law, because it was fuppofed that the clergy would be no lofers by fuch compofition; fince the confent of the ordinary, whofe duty it is to take care of the church in general, and of the patron, whofe intereft it is to protect that particular church, were both made neceffary to render the compofition effectual and hence have arifen all fuch compofitions as exift at this day by force of the common law. But, experience fhewing that even this caution was ineffectual, and [29] the poffeffions of the church being, by this and other means, every day diminished, the difabling ftatute 13 Eliz. c. 10. was made which prevents, among other fpiritual perfons, all parfous and vicars from making any conveyances of the eftates of their churches, other than for three lives or twentyone years. So that now, by virtue of this ftatute, no real compofition made fince the 13 Eliz. is good for any longer term than three lives, or twenty-one years, though made by confent of the patron and ordinary: which has indeed effectually demolished this kind of traffic; fuch compofitions being now rarely heard of, unlefs by authority of parliament (8).

m 2 Init. 490. Regift. 38. 13 Rep. 40.

(8) Such a compofition made fince the 13 Eliz., though confirmed by a decree of the court of chancery, is not binding upon the fucceeding incumbent. (2 Woodd. 107.)

SECONDLY, a discharge by cuftom or prefcription, is where time out of mind fuch perfons or fuch lands have been, either partially or totally, difcharged from the payment of tithes. And this immemorial ufage is binding upon all parties; as it is in it's nature an evidence of universal confent and acquiefcence, and with reason fuppofes a real compofition to have been formerly made. This cuftom or prefcription is either de modo decimandi, or de non decimando.

A modus decimandi, commonly called by the fimple name of 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 fometimes a pecuniary compenfation, as twopence an acre for the tithe of land: fometimes it is a compenfation in work and labour, as that the parfon fhall have only the twelfth cock of hay, and not the tenth, in confideration of the owner's making it for him: fometimes, in lieu of a large quantity of crude or imperfect tithe, the parfon fhall have a lefs quantity, when arrived to greater maturity, as a couple of fowls in lieu of tithe eggs; and the like. Any means, in fhort, whereby the general law of tithing is altered, and a new method of taking them is introduced, is called a modus decimandi, or fpecial manner of tithing.

To make a good and fufficient modus, the following rules [30] must be obferved. 1. It must be certain and invariable", for

ni Keb. 602.

With regard to compofitions entered into between the titheowner and any parishioner, for the latter to retain the tithe of his own eftate, it has been decided that they are analogous to leafes from year to year, between landlord and tenant; and if they are paid without, or beyond, an agreement for a fpecific time, they cannot be put an end to without fix months notice before the time of payment; and the parishioner may avail himself of the defect of notice, at the fame time that he controverts the right of the incumbent to receive tithe in kind; an objection not permitted to a tenant, who denies the right of the landlord. Cafe of Kenfington. 2 Rayner. 2 Bro. 161.

VOL. II.

D

payment

payment of different fums will prove it to be no modus, that is, no original real compofition; because that must have been one and the fame, from it's firft original to the present time. 2. The thing given, in lieu of tithes, muft be beneficial to the parfon, and not for the emolument of third perfons only°: thus a modus, to repair the church in lieu of tithes, is not good, because that is an advantage to the parish only; but to repair the chancel is a good modus, for that is an advantage to the parfon. 3. It must be fomething different from the thing compounded for P: one load of hay, in lieu of all tithe hay, is no good modus: for no parfon would bona fide make a compofition to receive less than his due in the fame fpecies of tithe and therefore the law will not fuppofe it poffible for fuch compofition to have existed. 4. One cannot be difcharged from payment of one fpecies of tithe, by paying a modus for another. Thus a modus of 1d. for every milch cow will difcharge the tithe of milch kine, but not of barren cattle for tithe is, of common right, due for both; and therefore a medus for one, fhall never be a difcharge for the other. 5. The recompenfe must be in it's nature as durable as the tithes difcharged by it; that is, an inheritance certain and therefore a modus that every inhabitant of a house fhall pay 4 d. a year, in lieu of the owner's tithes, is no good modus; for poffibly the house may not be inhabited, and then the recompenfe will be loft. 6. The modus must not be too large, which is called a rank modus: as if the real value of the tithes be 60l. per annum, and a modus is fuggested of 401. this modus will not be eftablished; though one of 40 s. might have been valid. Indeed, properly fpeaking, 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. For, in thefe cafes of prefcriptive or customary modus's, it is supposed that an original real compofition was antiently made; which being loft by length of time, the immemorial ufage is ad

I Roll. Abr. 649.

P 1 Lev. 179.

9 Cro. Eliz. 446. Salk 65%

2 P. Wms. 462.

11 Mod. 60.

Pyke v. Dowling. Hil. 19 Geo. III. C. B.

mitted as evidence to fhew that it once did exift, and that from thence fuch ufage was derived. Now time of memory hath been long ago afcertained by the law to commence from the beginning of the reign of Richard the first'; and any custom may be destroyed by evidence of it's non-existence in any part of the long period from that time to the prefent; wherefore, as this real composition is fuppofed to have been an equitable contract, or the full value of the tithes, at the time of making it, if the modus fet up is fo rank and large, as that it beyond difpute exceeds the value of the tithes in the time of Richard the firft, 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 it's non-existence at any time fince that aera, fo alfo it is deftroyed by carrying in itself this internal evidence of a much later original (9).

A PRESCRIPTION de non decimando is a claim to be entirely discharged of tithes, and to pay no compenfation in lieu of them. Thus the king by his prerogative is discharged from all tithes ". So a vicar fhall pay no tithes to the rector, nor

i 2 Inft. 238, 239. This rule was adopted, when by the ftatute of Weftm. 1. (3 Edw. I. c. 39.) the reign of Richard I. was made the time of limitation in a writ of right. But, fince by the ftatute 32 Hen. VIII. c. 2. this period (in a writ of right) hath been very rationally reduced to fixty years,

it feems unaccountable, that the date of legal prefcription or memory, should ftill continue to be reckoned from an aera fo very antiquated. See Litt. 170. 34 Hen. VI. 37. 2 Roll. Abr. 269. pl. 16.

a Cro. Eliz. 511.

(9) To conftitute a good modus, it seems neceffary that it should be fuch as would have been a certain, fair, and reasonable equiva lent or compofition for the tithes in kind, before the year 1189; and therefore no modus for hops, turkies, or other things introduced into England fince that time, can be good. Bunb, 307.

The question of ranknefs, or rather modus or no modus, is a queftion of fact, which courts of equity will fend to a jury, unless the groffnefs of the modus is fo obvious as to preclude the neceffity of . 2 Bro. 163. 1 Bl. R. 420.

W

the rector to the vicar, for ecclefia decimas non folvit ecclefiae▾: But these perfonal privileges (not arifing from or being annexed to the land) are perfonally confined to both the king and the clergy; for their tenant or leffee fhall pay tithes, though in their own occupation their lands are not generally titheable (10). And, generally speaking, it is an established rule, that, in lay hands, modus de non decimando non valet *. But spiritual perfons or corporations, as monasteries, abbots, bishops, and the like, were always capable of having their lands totally discharged of tithes, by various ways; as, 1. By real compofition: 2. By the pope's bull of exemption: 3. By unity of poffeffion; as when the rectory of a parish, [32] and lands in the fame parish, both belonged to a religious

houfe, thofe lands were difcharged of tithes by this unity of poffeffion 4. By prefcription; having never been liable to tithes, by being always in fpiritual hands: 5. By virtue of their order; as the knights templars, cistercians, and others, whofe lands were privileged by the pope with a discharge of tithes. Though upon the diffolution of abbeys by Henry VIII, moft of thefe exemptions from tithes would have fallen with them, and the lands become titheable again: had they not been supported and upheld by the ftatute 31 Hen. VIII. c. 13. which enacts, that all perfons who should come to the poffeffion of the lands of any abbey then diffolved, should hold them free and difcharged of tithes, in as large and ample a manner as the abbeys themselves formerly held them (11). x. Ibid. 511.

v Cro. Eliz. 479. 51. Moor. 910.

w Ibid. 479.

Sav. 3.

(10) But it feems to be determined that the king's tenant for years, or at will, is not liable to pay tithes, on account of the dignity of the king, who cannot be prefumed to have leifure or occafion to cultivate his own lands. Com. Dig. Difm. E. 78 × Woodd. 100.,

(11) This provifion is peculiar to that ftatute, and therefore all the lands belonging to the leffer monafteries, diffolved by the Hen. VIII. c. 28. are now liable to pay tithe. Com. Dig. Difm.

27

E. 7.

And