TITHES. 



difmifled, althoueh it was dated tbat the whole parifh con- 

 fided of ancient farms. (See Custom and PRESCRirxiox.) 

 This cuftom, or prefcription, is either de inoJo lUdmandi, 

 (fee Modus Dccimandi,) or de non decimando. No modus 

 can be eflabhOied at tliis day, but by aft of parhament. A 

 modus founded upon good confiderations may be in various 

 ways difchargcd, and tithes become due in kind : as, 



) . Wliere land is converted to other ufes : fo, when the 

 prefcription is for hay and grafs, fpecially, in fo many acres 

 of land ; if the land is converted into a hop-garden or til- 

 lage, the prefcription is gone. 



z- By the alteration or deftruftion of the thing for which 

 the muney was paid : as where two fulling-mills were under 

 the fajne roof, and turned into a corn-mill ; where alfo there 

 was one pair of ftones in a mill, and another pair was added ; 

 and where the water-courfe was altered by the owner, and the 

 mill was pulled down and re-edified upon it ; in all thefe 

 cafes, it was adjudged that the modus was gone. But where 

 a man was feifed of eight acres of meadow and one of paf- 

 ture, for the tithes whereof he had paid time out of mind 

 5j. 4(/. and afterwards the owner built a corn-mill upon the 

 fame ; it was adjudged that he (hould pay no tithes for the 

 corn-mill, becaufe the land was difcharged by the modus. 

 2 Inft. 490. 



3. By non-payment of the confideration, or payment of 

 tithes in kind, for fo long a time as to deftroy the polTibility 

 of making proof that fuch cuftom or prefcription was : but 

 an interruption for fome (hort time only, will not difcharge 

 it ; efpecially if made by the leflee, to the prejudice of the 

 leflbr. Watf. c. 47. 



The rule is, that the modus is to be fued for in the ec- 

 clefiaftical court, as well as the very tithe ; and if it be al- 

 lowed between the parties, they (hall proceed there ; but if 

 the cuftom be denied, it muft be tried at the common law : 

 and if it be found for the cuftom, then a confultation muft 

 go ; otherwife the prohibition ftandeth. The like is af- 

 firmed, in cafe a jury upon an iflue joined in a prohibition 

 upon a modus decimaudi, find a different modus ; fince a 

 modus is found, they ftiall not have confultation. 2 Intt. 490. 



The principal reafon why the courts of common law pro- 

 hibit the fphitual court from trying of modufes, is, that 

 whereas every modus is lefs than the real value, the rule of 

 the canon law is, that lefs than the real value {hall not be 

 taken, and that a cuftom to the contrary is void ; and that 

 the ecclefiaftical and temporal laws differ in the times of 

 limitation, forty years or under making a good cuftom by 

 the ecclefiaftical laws, whereas by the temporal laws it muft 

 be beyond the time of memory. Gibf. 691. 



But the fpiritual courts have commonly allowed and do 

 allow pleas of modus decimandi ; and the averment in the 

 prohibition is not that they do take cognizance, but that 

 the plea hath been offered and refufed ; which fnppofeth, 

 that if the plea be admitted, the prohibition ought not to 

 go. And accordingly it hath been affirmed by Doderidge 

 and others, that the fpiritual court may as well try the mo- 

 dus, as the right of tithes, and that a prohibition is not to 

 be granted, till the fpiritual court either refufe to admit the 

 plea, or proceed to try it by methods different from the rules 

 of the temporal law, as to the time of limitation, or num- 

 ber of witneffes, or the like. And where lord Coke con- 

 tended for the contrary doftrine, it was declared by Kelynge 

 and Twifden, that in cafe one hbel for a modus decimandi, 

 if the fpiritual court allow the plea, they may try it. 

 Gibf. 691. 



But, notwithllanding, it feemeth now to be clearly fet- 

 tled, that if a modus decimandi be fued for in the ecclefi- 

 aftical court, a prohibition lies to ftop the trial of it, if the 

 10 



modus be denied ; and the reafon is not upon the account 

 that the fpiritual court wnnt6 jurifdidtion, but in rcgnrd of 

 the notion the temporal law hath of cuftom, different from 

 the fpiritual : and feeing that every modus is due by cuftom, 

 it is the common law only that can determine, what lime 

 and ufage with us (liall be fufficient to create fuch cuftom, 

 that is, time beyond all memory to the contrary. Whereas 

 by tiie fpiritual law, fometimes ten years, fometimes twenty, 

 they will adjudge fufficient to create a cuftom. And pro- 

 hibitions in fuch cafes are granted, not becaufe the fpiritual 

 court hath not jurifditlion of the matter, but in refpedl of 

 the trial which is to be by the temporal law only ; and if 

 upon the trial it be found for the modus, the proceedings 

 ftiall go on in the fpiritual court ; if againft the modus, the 

 prohibition ftiall ftand. Watf. c. 56. 



If in the trial of a modus, the defendant permits the fpi- 

 ritual court to proceed to fentence, he is then too late to 

 come for a prohibition ; becaufe it is only for defeft of 

 trial, and not for defcft of jurifdidlion : but a man is never 

 too late for a prohibition, where it is for defedl of jurifdic- 

 tion. Bunb. 17. 10 Eaft's Rep. 349. 



A bill in equity, in the nature of a bill of peace, will alfo 

 lie to cftablifii a modus, where a fuit has been inftituted for 

 tithes in kind ; but a bill to eftablifti a modus or cuftomary 

 payment in lieu of tithes, cannot be fupported, where there 

 has been no attempt to enforce the payment of tithes in 

 kind. 4 Gwill. 1596. 



The following modufes have been eftabliftied as good, by 

 decifions in the courts of law : One penny for ancient gardens 

 and orchards. (Bunb. 79.) Seventeen-pence for every cow 

 having a calf, for the tithe of the milk and calf; eleven -pence 

 for the tithe of the milk of a milk cow, milked without a 

 calf; for every heifer, the firft year flie has a calf, thirteen- 

 pence for the milk and calf — thefe payable at Michaelmas. 

 Eight-pence for every hogftiead of cyder, made of apples 

 grown in the parifti ; for hoard apples, one penny ; for fire- 

 wood fpent on the farm, one hearth penny ; for fruit, herbs, 

 roots, and other garden ftuff, a garden penny ; for a colt, 

 one penny ; — thefe payable at Eafter. (Bunb. 57.) Eight- 

 pence for a cow, four-pence for an heifer ; three fliillings 

 and four-pence, payable at Eafter, for every fcore of ftiecp 

 ftiorn out of the parifti, and fo proportionably for a lefs 

 number than twenty, or for a lefs time than a year, for 

 their wool and lambs. (Bunb. 171.) Two-pence an hog- 

 ftiead for cyder. ( Roll. Abr. 649. ) The non-rcfident oc- 

 cupiers of land in B. and W. to pay on Good Friday, or as 

 foon after as demanded, four-pence an acre for the tithe of 

 hay, and the herbage of pafture lands not ploughed or fown ; 

 but, if refident, to pay tithes in kind. (2 P- Wins. 565.) 

 Four -pence an acre for high land, and three-pence an acre 

 for low land. ( Ibid. ) Twelve -pence for an acre of low 

 meadow, and eight-pence for an acre of high meadow, for 

 tithe of hay. ( l Bro. P. C. 214.) One penny for hay for 

 an ancient meffuage, with the demefne lands thereunto be- 

 longing, containing 60 acres, &c. One pound fix ftiillings 

 and eight-pence for an ancient tenement, containing 625 

 acres, for hay, fmall tithes, and Eafter offerings. ( Bunb. 

 161.) Nine cart-loads of logwood, delivered to the reftor 

 by the lord of the manor, for himfelf and tenants, in lieu 

 of all tithes. (Bunb. 279.) So of fix pounds />«• annum. 

 (Cro. EKz. 559.) A halfpenny for each calf, in lieu of 

 calves, payable on Wednefday before Eafter. A fmoak 

 penny for fire -wood. An halfpenny, payable on Shear-day, 

 for the wool of each ftieep dying between Candlemas antj 

 Shear-day. Four-pence a month, payable on Shear-day, 

 for the tithe wool of every hundred ftieep ftiorn in the parifti, 

 which were brought in after the 2d day of February. 



Three 



