ACTION FOR TREBLE VALUE OF TITHES. 403 



in kind at any time within leg^al memory {Earl of Stamford v. Danhar) 

 Where a sum of money has been expressly paid and received during the 

 whole statutable period mentioned in 2 & 3 Will. IV. c. 100, s. 1, as a 

 modus or composition for the tithe only, such payment renders the 

 modus valid and indefeasible, although the abandonment by the rector 

 of certain rights of common originally formed part of the consideration 

 for the payment ifToymbee v. Broiun). 



In order to take the payment of a modus for the statutable period out of 

 the operation of this section, by virtue of the concluding part of it, it 

 must be made by a consent or agreement in writing for the payment of 

 that very modus, during all or some part of that time, and that by a 

 person who could otherwise have objected to the payment ; for by the 

 words of the statute, the payment for the statutable period must be 

 made by consent in writiny expressly yiven for that purpose {ih). 



It was held by the Exchequer Chamber, in Barker v. The Tithe Com- 

 missioners confirming the judgment of the Court of Exchequer, that 

 where a claim of a modus or other exemption from tithe is preferred 

 before the Tithe Commissioners, under 6 & 7 Will. lY. c. 71, who de- 

 cide against the claim set up, the party is not precluded from setting up 

 another clai7u to a different modus on the same lands, unless the commis- 

 sioners have made their final award under the act, even though a feigned 

 issue delivered under the 46th section be pending to try the validity of 

 the first modus. 



In an action of debt on 2 & 3 Edw. VI. c. 13, s. 1, for treble value of 

 tithes carried away before setting out the same, the defendant should not 

 plead several pleas of nil debet by statute as to several parts of the lands 

 on which the titheable matters were produced, but should plead one 

 plea of nil debet by the statute to the whole (Graburn v. Brown). And 

 he will be obliged to give a particular of all grounds of exemption, modus, 

 &c., intended to be insisted on at the trial {ib.). Statute 5 & 6 Will. IV. 

 c. 74, s. 1, extends to the prohibition of actions of debt for treble value 

 under 2 & 3 Edw. VI. c. 13, s. 1, for not setting out tithes where the 

 annual value is less than £10 {Peyton v. Watson). As the account for 

 tithes is merely incidental to the rector's legal title, a court of equity 

 cannot interpose in his favour until he has established his right at law 

 {3Iarquis of Waterford, appel. v. Knight, clerk, respt.). A court of 

 equity will compel discovery and production of documents in aid of pro- 

 ceedings at law to try a disputed right under the Tithe Commutation 

 Act, notwithstanding special pi'ovisions are contained in that act for 

 those purposes {Morris v. Diike of Norfolk). A defendant is entitled to 

 judgment, as in case of a nonsuit, where the plaintiff has allowed two 

 assizes to elapse without proceeding to trial, after issue joined on a 



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