upon their first introduction (as hath formerly been observed), (e) though every man was obliged to pay tithes in general, yet he might give them to what priests he pleased; (a) which were called arbitrary consecrations of tithes or he might pay them into the hands of the bishop, who distributed among his diocesan clergy the revenues of the church, which were then in common. (b) But, when dioceses were divided into parishes, the tithes of each parish were allotted to its own particular minister; first by common consent, or the appointment of lords of manors, and afterwards by the written law of the land. (c) [ 27 ] However, arbitrary consecrations of tithes took place again afterwards, and became in general use till the time of king John. (d) Which was probably owing to the intrigues of the regular clergy, or monks of the Benedictine and other rules, under archbishop Dunstan and his successors: who endeavoured to wean the people from paying their dues to the secular or parochial clergy (a much more valuable set of men than themselves), and were then in hopes to have drawn, by sanctimonious pretences to extraordinary purity of life, all ecclesiastical profits to the coffers of their own societies. And this will naturally enough account for the number and riches of the monasteries and religious houses, which were founded in those days, and which were frequently endowed with tithes. For a layman, who was obliged to pay his tithes somewhere, might think it good policy to erect an abbey, and there pay them to his own monks; or grant them to some abbey already erected: since, for this dotation, which really cost the patron little or nothing, he might, according to the superstition of the times, have masses for ever sung for his soul. But, in process of years, the income of the poor laborious parish priests being scandalously reduced by these arbitrary consecrations of tithes, it was remedied by pope Innocent the (e) Third about the year 1200 in a decretal epistle, sent to the archbishop of Canterbury, and dated from the palace of Lateran: which has occasioned sir Henry Hobart and others to mistake it for a decree of the council of Lateran held A. D. 1179, which only prohibited what was called the infeodation of tithes, or their being granted to mere laymen, (f) whereas this letter of pope Innocent to the archbishop enjoined the payment of tithes to the parsons of the respective parishes where every man inhabited, agreeable to what was afterwards directed by the same pope in other countries. (g) This epistle, says sir Edward Coke, (h) bound not the lay subjects of this realm: but, being reasonable and just (and, he might have added, being cor[28] respondent to the ancient law), it was allowed of, and so became lex terrae. This put an effectual stop to all the arbitrary consecrations of tithes; except some footsteps which still continue in those portions of tithes, which the parson of one parish hath, though rarely, a right to claim in another for it is now universally held, (i) that tithes are due, of common right, to the parson of the parish, unless there be a special exemption. This parson of the parish, we have formerly seen, (k) may be either the actual incumbent, or else the appropriator of the benefice: appropriations being a : z Book I. Introd. § 4. a Inst. 646. Hob. 296. f Decretal. 1. S. t. 30. c. 19. tion of debt for not setting out the tithe claimed it will not be necessary for the plaintiff to set forth his title, particularly as such portionist, though it must be accurately shewn in evidence over what precise land the portion was granted. Cro. Jac. 437. Sandford v. Porter, Mirehouse, 25. € Pace, 483. Chitty. method of endowing monasteries, which seems to have been devised by the regular clergy, by way of substitution to arbitrary consecrations of tithes. (1) 3. We observed that tithes are due to the parson of common 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. 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. (m) 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. But experience shewing that even this caution was ineffectual, and the possessions of the church being, [29] 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 1 In extraparochial places the king, by his royal prerogative, has a right to all the tithes. See Book I. p. 313. 284. m 2 Inst. 490. Regist. 38. 13 Rep. 40. 10 (9) 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 good composition. 3 Bro. Rep. 217. 2 Anst. 372. Wightw. 324. 1 Daniel's Rep. 10. 1 Price, 253. Gwil. 587. Without such evidence of a deed, a composition real cannot be proved by reputation, though corroboratory 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 201. in lieu of tithes. 4 Mad. 140. 2 Bos. & P. 206. Mirehouse, 156, 7. 159.; but see 5 Ves. J. 187. With respect to compositions entered into between the tithe owner and any parishioner, for the latter to retain the tithes of his own estate, they are clearly legal and binding on the parties; and it has been decided, that they are analogous to tenancies from year to year, between landlord and tenant; and if they are paid without, or beyond, an agreement for a specific time, they cannot be put an end to without half a year's notice, expiring at the time of the year from which the composition commenced; and the parishioner may avail himself of the defect of no tice, at the same time that he controverts the right of the incumbent to receive the tithes in kind; an objection not permitted to a tenant who denies the right of the landlord. 2 Rayner on T. 992. 2 Bro. 161. 1 Bos. & Pul. 458. And this doctrine was confirmed in 12 East, 83., where it was also decided, that the notice must be unequivocal. A parishioner who has compounded with the parson one year for his tithes, and has not determined the composition, cannot set up as a defence to an action for the next year's composition money, that the plaintiff is simoniacus. 6 Taunt. 333. 2 Marsh. 38. If the occupier disclaim any liability to pay tithes at all, and deny the parson's title, this dispenses with the necessity for a notice to determine the composition. 1 Brod. & B. 4. 3 B. Moore, 216. S. C. (See the form of notice, Tidd's Forms, chap. xlvi. 5.; and if the time be uncertain, see id. s. 3.) In case of death of the incumbent who has agreed to the composition, the successor is entitled to tithe in kind; and there is no apportionment of the compositiou money under the 11 Geo. II. c. 19.; but if the successor continue to receive the same payment thereon, he will be entitled to an apportionment. 10 East, 269. 8 Ves. 308. 2 Ves. & B. 334. Bunb. 294. Price v. Lytton, per Plumner, m. of rolls, H. T. 1818. By agreeing to a com. position, a rector loses his remedy on the land, and on the statute Edward VI., and has only a personal action for the arrears of his composition. 4 Mad. 177. These compositions are purely personal, and in case of a change in the occupation of the land, the fresh occupier will be liable to set out tithe in kind. 2 Chitty's Rep. 405. Chitty. (10) And a composition made since that act, though confirmed by a decree in the court of Christian chancery, will not bind the successor. 2 Wooddes. 107. 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 this kind of traffic; such compositions being now rarely heard of, unless by authority of parliament. Secondly, a discharge by custom or prescription, is where 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 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 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 labour, 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 must be observed. 1. It must be certain and invariable, (n) for payment of different sums will prove it to be no modus, that is, no original real compo[30] sition; because that must have been 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 parson, and not for the emolument of third persons only; (o) 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 parson. 3. It must be something different from the thing compounded for; (p) one load of hay, in lieu of all tithe hay, is no good modus; for no parson would bona 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 composition to have existed. 4. One cannot be discharged from payment of one species of tithe, by paying a modus for another. (9) 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 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: (r) 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: 11 as if the real value of the tithes be 60l. per annum, and a modus is suggested of 40l., this modus will not be established; though one of 40s. might have been valid. (s) Indeed, properly speaking, the doctrine of rank n 1 Keb. 602. o 1 Roll. Abr. 649. p 1 Lev. 179. r 2 P. Wms. 462. mess in a modus is a mere rule of evidence, drawn from the improbability of the fact, and not a rule of law. (t) 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 shew that it once did exist, and that [31] 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; (u) and any custom may be destroyed by evidence of non-existence in any part of the long period from that time to the present; 12 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. 13 A prescription de non decimando is a claim to be entirely discharged of tithes, and to pay no compensation in lieu of them. Thus the king by his prerogative is discharged from all tithes. (v) So a vicar shall pay no tithes to the rector, nor the rector to the vicar, for ecclesia decimas non solvit ecclesiæ. (w) 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 titheable. (x) And, generally speaking, it is an established rule, that, in lay hands, modus de non decimando non valet. (y) But spiritual persons or corporations, as monasteries, abbots, bishops, and the like, were always capable of having their lands totally discharged of tithes by various ways; (2) as, 1. By real composition: 2. By the pope's bull of exemption: 3. By unity of possession; as when the rectory of a parish, and lands in the same parish, both belonged to a reli- [32] gious 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 t Pyke v. Dowling, Hil. 19 Geo. III. C. B. u 2 Inst. 238, 239. This rule was adopted, when by the statute of Westm. I. (3 Edw. I. c. 39.) the reign of Richard I. was made the time of limitation in a writ of right. But, since by the statute 32 Hen. VIII. . 2. this period (in a writ of right) hath been very rationally reduced to sixty 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. w Cro. Eliz. 479. 511. Sav. 3. Moor. 910. z Hob. 309. Cro. Jac. 308. Cro. Eliz. 511. x Cro. Eliz. 479. y Ibid. 511. (12) But though it is essential to the validity of a prescription or custom that it should have existed before the commencement of the reign of Rich. I., A. D. 1189, yet proof of a regular usage for twenty years, not explained or contradicted, is that upon which many private and public rights are held, and sufficient for a jury in finding the existence of an immemorial custom or prescription. 2 Bar. & Cres. 54. 2 Saund. 175. a. d. Peake's Evidence, 336. 4 Price R. 198. 2 Price R. 450. (13) 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 Rich. I.; and therefore no modus for hops, turkeys, or other things co 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 turkies, though the bird might 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 modus or no modus, is a question of fact, which courts of equity will send to a jury, unless the grossness of the modus is so obvious as to preclude the necessity of it. 2 Bro. 163. 1 Bl. R. 420. 2 Bl. R. 1257. Bedford v. Sambell, M. 16 Geo. II. Scacc. 3 Gwm. 1058. Twells v. Welby, H. 20 Geo. III. Scacc. 3 Gwm. 1192. Mire house, 180 to 186. Christian templars, cistercians, and others, whose lands were privileged by the pope with a discharge of tithes. (a) Though upon the dissolution of abbeys by Hen. VIII. most of these exemptions from tithes would have fallen with them, and the lands become titheable 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. "4 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 shew his lands to have been such abbey-lands, and also immemorially discharged of tithes by any of the means before mentioned, this is now a good prescription e non decimando. But he must shew both these requisites; for abbey-lands, 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. 16 III. Common, or right of common, appears from its very definition to be an incorporeal hereditament: being a profit which a man hath in the land of another; as to feed his beasts, to catch fish, to dig turf, to cut wood, or the like. (a) And hence common is chiefly of four sorts; common of pasture, of piscary, of turbary, and of estovers. 17 1. Common of pasture is a right of feeding one's beasts on another's land for in those waste grounds, which are usually called commons, the property of the soil is generally in the lord of the manor; as in common fields it is in the particular tenants. This kind of common is either appendant, appurtenant, because of vicinage, or in gross. (b) Common appendant is a right belonging to the owners or occupiers of arable land, to put commonable beasts upon the lord's waste, and [33] upon the lands of other persons within the same manor. Com a 2 Rep. 44. Seld. tith, c. 13. § 2. a Finch. law. 157. 18 b Co. Litt. 122. (14) 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 2001.), dissolved by the 27 Hen. VIII. c. 28. are now liable to pay tithes. Com. Dig. Dism. E. 7. Christian. (15) See note 12, ante 31. 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, Gwil. 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 shewing the origin of the exemption. 2 Co. 44. Peake on Evid. 470. 1. 4 ed. Bunb. $25. 345. 3 Anst. 762.945. Mirehouse, 152. 156. 7. And the same rule ap plies when the claim of exemption is 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, is to be entertained. 3 Anstr. 705. but see Rose v. Calland, 5 Ves. J. 186, contra see Mirehouse, 159. Chitty. (16) The remedies for subtraction of tithe, as pointed out post 3 vol. 88. 102, and the 53 Geo. III. c. 127. provides a remedy for small tithe. (17) As to rights of common in general, see Com. Dig. tit. Common; Bac. Ab. tit. Common; 3 Com. Dig. 92 to 118.; Selw. N. P. tit. Common; Saunder's Rep. by Patterson, index. tit. Common and Commoners. The better cultivation, improvement, and regulation, of the common fields, wastes, and commons of pasture, is effected by 29 Geo. II. c. 36. s. 1. 31 Geo. II. c. 41. 13 Geo. III. c. 81. and the 38 Geo. III. c. 65. contains regulations for preventing the depasturing of forests, commons, and open fields, with sheep or lambs infested with the scab or mange. The very general enclosure of commons has rendered litigation respecting them less frequent than formerly. Such enclosure is usually effected by a separate private act. But to prevent the repetition of clauses usually applicable to all local acts, the general inclosure act, 41 Geo. III. c. 109. (amended by 1 & 2 Geo. IV. c. 23.) was passed, which however is not to operate against the express provisions of any local act. See sect. 44. 1 Bar. & A. 630. Chitty. (18) Common appendant only belongs to arable land, and can only be claimed for so many cattle as are necessary to plough or manure the tenant's arable land, levancy and couchancy are incident to common appendant as well as appurtenant. Willes R. 227. 231. Chitty |