(27) See the last note. It must also be recollected, that some lands are still extra-parochial, and to the tithes arising from such lands, the king is entitled. Moreover, lands lying within a royal forest do not pay tithes, although they be within a parish. (Banister v. Wright, Styles, 137. 1 Roll. Abr. 657.)

All spiritual persons and corporations were capable of having their lands, whether in their own occupation or not, totally discharged from payment of tithe, either by real composition, (Donison v. Elsley, 1 M'Clel. & Younge, 23,) by prescription, (Markham v. Smith, 12 Pr. 131; Clavill v. Oram, 3 Eag. & Y. 189,) or by a papal bull of exemption, in cases where such bull was once legally recognized in this country. (Wright v. Hildersham, Hob. 309; Page v. Wilson, 2 Jac. & Walk. 528; Townley v. Tomlinson, 2 Eag. & Y. 189.) And where lands appear to have been before, and at the time of, the council of Lateran, (Staveley v. Ullithorne, Hard. 101,) part of the possessions of any of the greater monasteries, suppressed in the time of Henry VIII., and to have remained so till the dissolution; (Norton v. Hammond, 1 Younge & Jerv. 108; Willis v. Farrer, 2 Y. & J. 236;) and there is no evidence of the payment of tithes for those lands at any time, our courts, (even before the recent statute of 2 & 3 Gul. IV. c. 100,) considered them as discharged, by some way or other, before the dissolution. (Lamprey v. Rooke, Amb. 291.) It was said, however, that as privilege of order was the most common mode of exemption, that must be presumed to have been the original ground of discharge, unless some other is proved.

(Bury St. Edmund's case, Comyn, 655; Page v. Wilson, 2 Jac. & Walk. 522; Bowles v. Atkins, 2 Keb. 162, 175; Sydown v. Holmes, Cro. Car. 423; but see Ingram v. Thackston, 3 Eag. & Y. 1242.) And the privilege of exemption from payment of tithe, when claimed by ecclesiastical communities merely ratione ordinis, was restricted to lands in their own manurance and occupation. (Young v. Naylor, 2 Eag. & Y. 349; Slade v. Drake, Hob. 296.)

The king may prescribe de non decimando, and so may tenants of the royal demesnes; as may a bishop, and his tenants (see post, p. 31, note.) The cases, also, of tenants of certain estates which formerly belonged to religious houses, are exceptions to the general rule, that laymen cannot prescribe de non decimando; (Branche's case, Moor, 219; Clavill v. Oram, 3 Eag. & Y. 1370 ;) for this right was, at the dissolution of the greater abbies, reserved to the crown, and its grantees, by the statute of 31 Hen. VIII., confirmed by 2 & 3 Edw. VI. c. 13; but to support the prescription, (before the late statute of 2 & 3 Gul. IV. c. 100,) the lands to which it applied must have been shown, by competent evidence, to have been possessed by the suppressed religious house, before the council of Lateran, A. D. 1215. (Markham v. Smyth, 11 Price, 131; Norton v. Hammond, 1 Younge & Jerv. 103.) However, usage, which could not be legally accounted for on any other hypothesis, was held to afford such competent evidence; (Donnison v. Elsley, M'Clel. & Y. 24;) and when a man occupied lands which came to the crown at the dissolution, discharged from tithes, and such property

had been the subject of ordinary transfer, by the same sort of conveyances as lay fees, Courts of Equity would lend no assistance to disturb the possession, by putting the occupier to prove the commencement of the title (Williams v. Bacon, 1 Sim. & Stu. 418), but sent the party claiming tithe to make out his case at law. (Berney v. Harvey, 17 Ves. 127.) Unity of possession, at the time of the dissolution, in the reign of Henry VIII. of a parsonage, and of lands which would otherwise have been liable to pay tithes thereto, always afforded a prima facie evidence of an immemorial prescription de non decimando, if the union could not be shown to have taken place within time of memory, and there was no evidence of tithes having ever been paid; (Peake's Law of Evid. 416, 417. Doubitofte v. Curteene, Cro. Jac. 454;) though a legal foundation for the presumption must, of course, have been first laid, by satisfying the Court which had to decide upon the question, that such unity of possession did, at all events, exist at the time of the dissolution; (Phillips on Evid. c. 7, s. 7 ;) but, we have just seen, Courts of Equity were not technically precise and rigid with respect to the evidence which they required on this head. Mere unity of possession, however, when the union cannot be proved to have taken place within time of memory, wants the most essential quality of a prescription, as the limits of prescription were understood before the statute already referred to, passed. (Case 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, (previously to the late act,) unless the

unity of possession had been in fact, or according to legal presumption, perpetual, the abstract right to tithes was held to subsist; and the distinct actual enjoyment thereof was revived, whenever the possession was severed. (Fox v. Bardwell, Com. 511; Anon. Dyer, 43 a.) The 5th section of the statute of 2 & 3 Gul. IV. c. 100, enacts, that the time during which lands shall be holden by persons entitled to the tithes thereof shall be excluded, when computing the periods necessary to give validity to prescriptions, and claims of modus. 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. 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

(1) In extra-parochial places, the king, by his royal prerogative, has a

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 show 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; (see the 2nd section of the act of 2 and 3 Gul. IV. c. 100;) 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 did originate, in a composition; (Chapman v. Monson, 2 P. Wms. 573;) but then, a modus must (before the late statute, so often already referred to,) have been 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,

right to all the tithes. (See Book i. p. 113, 284.)

when it can be inferred, from satisfactory 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, (unless such retainer has continued the full period declared to be necessary by the act of 2 & 3 Gul. IV. c. 100) will not, alone, justify a presumption, that a legal grant thereof must, at some time, have been made; it will be necessary also to show 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, before the late act, would ever have been advised to plead a modus; when, by pleading at once a composition real, he could have had the advantage of showing non-usage, and would also have got rid of any objection on the score of rankness; (Ward v. Shepherd, 3 Price, 625; Estcourt v. Kingscote, 4 Mad. 141;) which objection, if made out, was fatal, before the late act. 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 de