though it was not proved to have been made with the consent of the patron and ordinary, the court presuming, from the particular circumstances of the case, that all the necessary consents had been given.* has been no de The statute only refers to cases of real compositions Compositions where there has been a decree of a court of equity; where real where there that has not been the case, in order to establish the vali- cree of a court dity, evidence must be given of such deed or agreement in of equity. writing between all the proper parties, previous to the stat. 13 Eliz. c. 10, and it would not be sufficient to prove that the payment in lieu of tithes commenced before that time, founded on an agreement which might have been by parol, and merely personal between the rector and the parishioners only. It is not absolutely necessary to produce the deed or agreement itself; but, if not produced, the evidence must prove that it once existed; and where the evidence Evidence of. rests on reputation, such reputation must be distinctly of payments having been made under such a deed; and that those payments had their origin under an instrument made within time of memory," otherwise it would only be evidence of a prescriptive payment; and usage in such a case is not sufficient; for though that is in general a ground for presuming deeds, even against the crown, yet in the particular instance of composition for tithes, it is settled, that where the deed cannot be produced, some evidence must. be given referring to the deed, or showing that it did exist, independent of mere usage; and the reason why this has been so held is stated to be, that, if it were otherwise, the church would be defrauded, and every bad modus turned into a good composition. The presuming a deed from long usage is an invention, for the sake of peace, where there has been a long exercise of an adverse right. For instance, it cannot be supposed that any man would suffer his neighbour to obstruct the light of his windows, or to use a way with carts or carriages over his lands for twenty years, unless some agreement has been made between the parties to that effect, of which the usage is evidence. But with respect to a compensation for tithes, the same reason does not obtain, because temporary agreements are made and continued for the convenience of parties during a succession of incumbents. There is no exercise of an adverse right, which is generally deemed necessary to raise the presumption; and indeed if such presumption were raised * Ridley v. Storey, 3 E. & Y. 918. y Bennett v. Skeffington, 4 Price, 143. Heathcote v. Mainwaring, 3 Br. C. C. 217; 2 E. & Y. 366. Distinctions in or of a composition real. from an usage which is only adverse to particular incumbents, it would directly contravene the maxim, Nullum tempus occurrit ecclesia, which, previously to Lord Tenterden's Act, was always held to be good. It may be inferred that clear proof of the possession, and enjoyment of lands in lieu of tithe, would be received as presumptive evidence of a composition real: as in a case where a real composition of five acres, called tithe acres, in lieu of the tithes of a meadow of 200 acres, was set up, Lord Hardwicke said, it is very reasonable to suppose that the denomination tithe acres arose from the five acres having been set apart from the rest in lieu of tithes. But this, it must be remembered, is only another mode of proof; and does not alter the necessity of proving that it existed previous to the stat. 13 Eliz. ; for as it was said in another case, where this mode of proof was attempted, "If any conveyance had been made, it might have been subsequent to that statute, and therefore not binding." From what has been already said, it will be observed proof of a modus that there must sometimes be much difficulty in distinguishing between the case of a composition real and a modus; for, as it has been observed, they are the same things in their nature and substance. A composition real, however, must have had its origin within the time of legal memory; a modus must have existed from time immemorial. A composition real must be proved by a deed, or evidence of the existence of a deed; a modus is proved from immemorial usage only. And now, since the recent statutes, in order that land should be discharged from the payment of tithes, by a composition real in lieu of them, it seems necessary that a deed or agreement should be proved of such a kind, and in such a manner, as we have mentioned, existing previous to the 13 Eliz.; or that a decree in Chancery should have been made, to which all proper persons were parties, and which has not since been set aside or departed from. If neither of these circumstances could be proved, it seems that the statute 2 & 3 Will. IV. c. 100, providing for the exemption of lands from tithes by nonpayment, would not be applicable to cases where the nonpayment had been on account of a composition real, for whatever length of time it might have existed; for as that would have been, and must be proved to have been, by deed or agreement, it would be one of the cases excepted from the operation of that statute, since it would be proved that the exemption was enjoyed by consent or c Sawbridge v Benton, ante. Tithes, 168. e Shelford a Chatfield v. Prym, 1 Price, 253. agreement, expressly made or given, for that purpose, by deed or writing. SECTION 4. Discharge of Lands from Payment of Tithes by private Lands may be, and frequently have been, permanently Inclosure acts. exempted from the payment of all tithes by special acts of parliament, which of course override all general law, and depend entirely upon the circumstances of each particular case. Thus in many of the modern inclosure acts, the lands inclosed are for ever freed and discharged from the payment of all tithes, and a portion of land is allotted to the spiritual or lay rector, or to the vicar, their successors or heirs, as the case may be, in lieu of them." Where common lands had been thus inclosed and allotted, and a portion had been allotted to an estate which was clearly tithe-free, i. e. of which the owner had purchased the tithes from the lay impropriator, the land allotted to him was held to be tithe-free also; and that the lay impropriator who had sold the tithes of the estate, could not be entitled to the tithes of land allotted to the owner of that estate in lieu of a right of common which was appurtenant by custom to the land; for in this case. no tithe would have been payable by the owner of the estate for his cattle feeding upon the common land before the inclosure act, and that act could not create a right which did not exist previously.h In some other acts of this kind a corn-rent has been Corn-rent subsubstituted in the place of tithes, and several private acts stituted. have been passed for the express purpose of commuting tithes for a corn-rent. lands from In pursuance of an order of the House of Commons in Number of priDecember, 1831, a return was made of the several parishes vate acts passed in England and Wales, in which commutation of the whole for exempting great or small tithes of such parish had been authorised tithes. under any act of parliament, distinguishing the cases in which allotments had been assigned in lieu of such tithes from those in which corn-rents had been made payable; and further specifying in each case whether the tithes so commuted were the property of the clerical rectors, of impropriators, or of vicars. This return contained a chronological list of upwards of 2000 acts containing clauses 1 2 & 3 Will. 4, c. 100, s. 1; and see Salkeld v. Johnson, ante. h 5 Barn, & Ald. 22. Cruise's Dig. tit. xxii. for the commutation of tithes, from the year 1757, 30 Geo. II. to the year 1830, the end of the reign of Geo. IV. The above return does not contain the unprinted acts, nor about thirty inclosure acts not in the collection of the House of Commons. A further return has been made from the inclosure and other private acts, in which provisions are included for the commutation of tithes, of the proportion in lands, yearly money payments, and corn-rent allotted in lieu of tithe; distinguishing the old inclosures, the open field lands, and the commons, and the proportions for tithe allotted in the case of each description of land. Several of these private acts, however, only affect the tithes of lands intended to be inclosed, and not the whole of the tithes of the parish.* All these commutations under acts of parliament are not in any way altered or affected by the recent act for commutation of tithe, but in each case still depend upon the provisions in the particular acts under which they may have been made, being expressly excepted from the operation of the general act.1 Definition of a modus. SECTION 5. Discharge of Lands from Tithes by some established A modus decimandi, commonly called by the simple 1 6 & 7 Will. 4, c. 71, s. 90. of legal memory, or the first year of the reign of Richard the First, A. D. 1189; and if it could be proved either by extrinsic evidence, or by intrinsic evidence appearing from the modus itself, to have commenced subsequently to that time, it would be bad. A modus, moreover, is always What will be presumed to have commenced by deed, because the con- presumed as to. sent and confirmation of the patron and ordinary must have been necessary; but unlike the case of a composition real, it is unnecessary to prove the existence of the deed, or that it ever did exist; but after the constant annual payment in lieu of tithes from time immemorial, a legal commencement will be presumed." a modus. The following are the leading rules which are essential Leading rules to the establishing a valid modus, and with each and as to validity of every of which the modus must comply, or it will be bad, carrying with it intrinsic evidence of its invalidity. 1. It must be certain and invariable. 2. The thing given in lieu of tithes must be beneficial to the parson and not for the benefit of a third person only. 3. It must be something different from the thing compounded for. 4. It must be a payment for that particular species of tithe which it pretends to be in lieu of. 5. It must be in its nature as durable as the tithes discharged by it. 6. It must not be rank." 1. It must be certain and invariable: that is, certainty Must be certain of the recompence given, certainty of the thing for which and invariable. the recompence is given, and also certainty of the person to whom it is given, are necessary; and the payment of different sums, or to different persons, will at once prove it to be no modus; for it must originally have been a composition by which something fixed and invariable must have been determined on. An uncertain or fluctuating payment, or, as it is called in legal language, a desultory or leaping modus, could never have been settled from time immemorial; as, for example, a modus to pay a tithe Examples. penny or a penny per annum, or thereabouts, for every acre of land, would be void, since a certain right cannot be taken away by substituting a precarious compensation. And so a modus of one penny payable by every occupier of land in lieu of the tithe of hay, is bad, for there may be the same number of houses and inhabitants, but the land may be at one time in the occupation of many per |