SOO ANNUAL REGISTER, 1816. 



the Exchequer, the Barons direct- 

 ed issues to ascertain the validity 

 of such moduses, and the same 

 were now tried before a special 

 jury. 



The evidence on the part of the 

 parish consisted of tlie testimony 

 of many old persons, with le- 

 ceipts given by different vicars, 

 all of which concurred in show- 

 ing that the moduses had never 

 varied, and had been in existence 

 fiom time immemorial, except 

 that, diu'ing the incumbency of 

 the Rev. Mr. Nicholson, (who 

 preceded the present vicar, the 

 Rev. Mr. Prevost) there were a 

 few instances of 3s. having been 

 paid for each cow, and this sum 

 had also been paid by two or 

 three small occupiers to Mr. Pre- 

 vost. The vicar relied on these 

 variations, coupled with the cir- 

 cumstances of the augmentation 

 made to the Aicarage, by the 

 Abbess and Convent of Shaftes- 

 bury, in the year 1360, and of 

 two terriers remaining in the 

 Bishop's registry. In the former 

 is a grant to the vicar of " Lac- 

 tagium seu Lacticinium." In the 

 latter is mentioned a " Cow 

 ^Vhite ;'' and these words, iit was 

 contended meant the tithes of 

 milk. 



Mr. Sergeant Lens, on the part 

 of the defendant, insisted, that 

 vicarial tithes were justified by 

 the common law of the land ; and 

 that, although moduses were 

 taken by the late Rev. Mr. Ni- 

 cholson, it formed no rule for the 

 present vicar, 'Mv. Prevost. It 

 appeared that in the present case 

 various modes of payment had 

 been made in the parish, both for 

 cows and for gardens ; and he 

 contended, that unless payments 



were unvaried and invariable, the 

 modus could not be established. 

 Mr. Prevost, he said, had cer- 

 tainly, on his first coming to the 

 vicarage, acquiesced in receiving 

 the modus j but he was not on 

 this account shut out from his 

 claim for vicarial tithes : no docu- 

 ments of a date antecedent to the 

 year 1781 had now been pro- 

 duced, and an usage, like the 

 present, of 40 or 50 years, was 

 not sufficient to set aside the 

 general rule and law of the land. 

 Mr. Seigeant Pell, for the 

 plaintiff, contended, that the mo- 

 dus, in this state, was fuUy esta- 

 blished by the evidence of the va- 

 rious witnesses who had now 

 proved its having been paid for a 

 great many years ; and he insist- 

 ed it was a circumstance which 

 greatly strengthened his case, 

 that none of the books of antece- 

 dent vicars, proving the vicarial 

 tithes to have been paid, had now 

 been produced. The learned Ser- 

 geant then animadverted severely 

 on the two miserable witnesses 

 (as he called them) who had prov- 

 ed their having paid for the last 

 few years, to the present vicar, 

 the sum of Ss. per cow : one of 

 those witnesses, when repeatedly 

 asked why he had paid 3s. know- 

 ing that the other parishioners of 

 Tisbury only had paid 3d. de- 

 clined giving an answer; and 

 when asked by a gentleman of 

 the jury if he would have paid 

 more than 3s. if demanded, said 

 he begged to be excused answer- 

 ing. The learned Sergeant con- 

 cluded with impressing on the 

 minds of the jui-y the great im- 

 portance of the decision which 

 they were called upon to make in 

 this case J and which decision 



would. 



