402 PROPER FARM MODUS. 



question is, whether a modus exists of a certain sum of money for a 

 particular farm in a township within the parish, the plaintiff may 

 inquire whether other farms in the same township are not subject to 

 the same payment for the purpose of showing that such payments can- 

 not be a farm modus {BlundcU v. Howard). 



A modus and its incidents were thus described by KindersUy V.C., 

 in Clmpneys x. Buchan : " A proper farm modus is a 7nodus payable in 

 lieu of the tithes in kind of a particular parcel of ground. A modus 

 decimandi properly means a particular mode or manner of tithing, which 

 custom or prescription has substituted for the ordinary common law 

 mode of rendering tithes in kind. A modus, indeed, can only exist by 

 virtue of a custom or prescription ; but it is a custom not creating, but 

 modifying and altering, the original common law liability to pay tithe. 

 AVhenever there is a valid inodus, the law presumes that at some period 

 before the time of legal memory tithes were payable in kind in the 

 ordinary common law manner, and that by some ancient composition, 

 or agreement, or practice, dating before the time of legal memory, some 

 other manner of tithing became substituted for it, which was at the 

 time a fair and reasonable equivalent for the tithe payable by the com- 

 mon law. The modus does not create the liability to tithe, so as that if 

 there were no modus there would be no liability to tithe ; on the con- 

 trary, the existence of a modus pre-supposes the original liability to 

 tithe ; so that if there were no modus, tithes would be payable in kind, 

 according to the common law. The term modus decimandi is therefore 

 properly applicable to those things only which are titheable at common 

 law, and not to things which de communi jure are not hable to tithe at 

 all. Whenever tithe is payal)le for a thing which de communi jure is 

 not liable to tithe, this can only be by virtue of a special custom which 

 creates the original liabihty to tithe ; so that, if there were no custom, 

 there could be no liability to tithe. And the same custom which 

 creates the liability to tithe must also prescribe what is payable for the 

 tithe, and how its amount is to be ascertained, and in what manner the 

 tithe is to be rendered or paid." 



If the incumhent against whom an award is made in favour of a modus 

 dies within the three months, having had notice in writing of the decision 

 without having brought an action to dispute it, his successor cannot 

 do so after the three months have expired ; and if he does, the Court 

 will set the proceedings aside on motion {Homfray, clerk, v. Scrope). 

 A claim of modus decimandi from time immemorial may be pleaded, not- 

 withstanding the statute 2 & 3 Will. IV. c. 100, and may be proved by 

 the same evidence as would have been sufficient before the statute ; but 

 Buch claim will be liable to be defeated by showing payment of tithes 



