Time. Martinmas, &c., generally parol evidence is receivable without reference to custom to show whether the day of taking was intended to be calcu lated according to the new or old style. (Id.; Smith v. Walton, Bingh. 238; 11 M. & Scott, 380.) If, however, the demise be by de to hold from any particular feast, as from the feast of St. Michael's, &c.' the holding must be taken to be according to the new style, not withstanding the custom and this rule prevails, although the tenancy created by a holding over after the expiration of the lease, and t original entry was according to the old style. (Doe d. Spicer v. Le 11 East, 312; Smith v. Walton, supra. See Doe v. Hopkinson, 3 D. & I 508, 509, and 11 East, 313, per Cur.) Tin. See "Pewter," Vol. V. "Malicious Injuries to Property, Vol. V. As to the Duties of Customs payable on Tin, & "Excise & Customs," Vol. II. Tithes. Commutation of. In the last edition of this work, one of the sections under this title devoted to the law relative to the Commutation of Tithes. The subject, hot ever, has no immediate concern with justices of the peace, and but slight with parish officers; and considering that the many recent statut and decisions on it would swell out this title to a great length, and questions on the subject will soon rarely arise, it is thought not wort while noticing it in the present edition. Preliminary ob I. Summary Remedy for, when due from any Person, 262. [7 & 8 Will. III. c. 6; 27 Geo. II. c. 10; 53 Geo. III. c. 127; 7 Geo. IV c. 15; 7 & 8 Geo. IV. c. 17; 5 & 6 Will. IV. c. 74; 4 & 5 Vict. c. 36.] II. Summary Remedy for, and other Church Rates and Pay ments, due from Quakers only, 270. [7 & 8 Will. III. c. 34; 1 Geo. I. st. 2, c. 6; 27 Geo. II. c. 20; 53 Geo. III III. Of Contempts for Tithes in the Spiritual Court, 271. IV. Forms, 272. I. Summary Remedy for Tithes due from any Person. The books in general confound the 7 & 8 Will. III. c. 6, concerning servations on the small tithes only, due from any person whatsoever (whether Quaker or not, being no way material), with the 7 & 8 Will III. c. 34 (a), and 1 Geo. statutes as to. (a) The 7 & 8 Will. III. c. 6, was passed to continue seven years, and by the 13 & 14 Will. III. c. 4, was continued for eleven years more, and made perpetual by 3 Anne, c. 18; and it was these acts only to which the 1 Geo. 1. stat. 2, c. 6, referred. I. st. 2, c. 6, concerning Quakers' tithes only, great and small, and their 1. Summary other church dues. Nevertheless, the acts are entirely distinct in them- Remedy for, selves, and the method of proceeding in the one case and in the other is when due from different in almost every instance. Care has therefore been taken to ex- any Person. tricate them out of this confusion, by inserting them separately, and by drawing distinct forms upon each, according to the different methods of proceeding. The 7 & 8 Will. III. c. 6 (which we shall presently notice more fully), gives a summary remedy, before two justices of the peace, for the more effectual recovery of small tithes, offerings, oblations, obventions, and compositions, where the same do not amount to above the yearly value of 40s. from any person. The 53 Geo. III. c. 127, s. 4, post, p. 267, extends this summary remedy to all tithes whatever, whether great or small, where the value does not exceed 101. And these provisions are extended by the 5 & 6 Will. IV. c. 74, and the 4 & 5 Vic. c. 36, post, p. 269. The 7 Geo. IV. c. 15, post, 267, enacts, that in places where justices are pastors of the church, the tithes are to be recovered before justices of any adjoining county. By virtue of these statutes, if any person subtract or fail in the payment of tithes for twenty days after demand thereof, the parson, vicar, or other person to whom they are due, may make his complaint in writing before any justice of the peace, who shall summon the persons against whom the complaint is made, before two justices of the peace, neither of whom is to be patron of the benefice to which the tithes belong, who are authorized to hear and determine all such complaints touching tithes, oblations, and compositions subtracted or withheld, where the value does not exceed 107.; and, since the 5 & 6 Will. IV. c. 74, and 4 & 5 Vict. c. 36, this is the only way of recovering them, except where the title to the tithe, &c., or the liability or exemption of the property alleged to be subject to the tithe, is bona fide in question. The tithes must have become due, &c. within two years before the complaint laid. The enactments do not it will be seen extend to tithes in the city of London, or the liberties thereof, or in any other city or town corporate, where the same are settled by any act of parliament. "In principle it is clear that the statute of William the Third was intended only to apply to those cases in which the tithes were actually due, independently of any dispute upon matters of law, either with regard to the person receiving them, or the manner of receiving them. We cannot doubt that this is the principle of the act. The object of it was to give to the owner of tithes an expeditious mode of recovering them; and it must be obvious that a cheap and expeditious remedy in such cases must be no less beneficial to the tithe-owner than to him who is to pay. Every suit for subtraction of tithes, whether in a court of common law, or a court having ecclesiastical cognizance, must in its nature be very expensive, and of course equally burdensome to him who claims and him who pays. One cannot doubt that it was to remedy this evil this act was passed." (Per Abbott, C. J., R. v. Jeffrey, 2 D. & R. 860; 1 B. & C. 604, 3. C.; 3 Eag. & Y. 1098; Gwil. 2065.) We will now proceed to notice the above statutes and the decisions thereon in detail. The 7 & 8 Will. III. c. 6, intituled "An Act for the more easy Re- 7 & 8 Will. III. covery of Small Tithes," reciting that, "for the more easy and effectual c. 6. recovery of small tithes, and the value of them, where the same shall be Sic in act. unduly subtracted* and detained, where the same do not amount to above Small tithes not paid in 20 days the yearly value of 40s., [extended to 101., &c. by 53 Geo. III. c. 127, S. after demand, 4, post, 267], from any one person," enacted, "that all and every person complaint may be and persons shall henceforth well and truly set out and pay all and sin- made to two jusgular the tithes, commonly called small tithes, and compositions and agree- ed. tices not interest 1. Summary Remedy for, when due from any Person. 7 & 8 Will. III. c. 6. Who may sum mon the persons complained of, and on default of appearance determine complaint, &c. On refusal to pay in ten days after notice, constables, &c. may distrain. ments for the same, with all offerings, oblations, and obventions, to the several rectors, vicars, and other persons to whom they are or shall be due, in their several parishes within this kingdom of England, dominion of Wales, and town of Berwick-upon-Tweed, according to the rights, customs, and prescriptions commonly used within the said parishes respectively; and if any person or persons shall hereafter subtract or withdraw, or any ways fail in the true payment of such small tithes, offerings, obla tions, obventions, or compositions as aforesaid, by the space of twenty days at most after demand thereof, then it shall and may be lawful for the person or persons to whom the same shall be due, to make his or their complaint in writing [see Form (No. 1), post] unto two (a) or more of his majesty's justices of the peace within that county (b), riding, city, town corporate, place, or division, where the same shall grow due; neither of which justices of peace is to be patron of the church or chapel whence the said tithes do or shall arise, nor any ways interested in such tithes, offerings, oblations, obventions, or compositions aforesaid." An order for non-payment of small tithes was quashed, because it was said only upon complaint generally, and the statute requires the complaint to be in writing. (R. v. Furness, 1 Str. 264.) No particular form, however, is requisite, and so long as it substantially shows the subjectmatter of the complaint, to give the justices jurisdiction, it will suffice. Sect. 2. "That if hereafter any suit or complaint shall be brought to two or more justices of the peace as aforesaid, concerning small tithes, Offerings, oblations, obventions, or compositions as aforesaid, the said justices are hereby authorized and required to summon, in writing under their hands and seals, by reasonable warning, every such person or per sons against whom any complaint shall be made as aforesaid, and after his or their appearance, or upon default of their appearance, the said warning or summons being proved before them upon oath, the said justices of peace, or any two or more of them, shall proceed to hear and determine the said complaint, and upon the proofs, evidences, and testimonies produced before them, shall, in writing under their hands and seals, adjudge the case, and give such reasonable allowance and compensation for such tithes, oblations, and compositions so subtracted or withheld as they shall judge to be just and reasonable, and also such costs and charges not exceeding 10s., as upon the merits of the cause shall appear just." Sect. 3. "That if any person or persons shall refuse or neglect, by the space of ten days after notice given, to pay or satisfy any such sum of money, as upon such complaint and proceeding shall by two or more justices of the peace be adjudged as aforesaid, in every such case the constables and churchwardens of the said parish, or one of them, shall by warrant under the hands and seals of the said justices to them directed, distrain the goods and chattels of the party so refusing or neglecting as aforesaid; and after detaining them, by the space of three days, [by 27 Geo. II. c. 20, not less than four days, nor more than eight,] in case the said sum so adjudged to be paid, together with reasonable charges for making and detaining the said distress, be not tendered or paid by the said party in the mean time, shall and may make public sale of the same, and pay to the party complaining so much of the money arising by such sale as may satisfy the said sum so adjudged, retaining to themselves such reasonable charges for making and keeping the said distress, as the said jus tice shall think fit, and shall render the overplus (if any be) to the owner. Sect. 4. "That it shall and may be lawful for all justices of peace, in minister an oath. the examination of all matters offered to them by this act, to administer an oath or oaths to any witness or witnesses, where the same shall be necessary for their information, and for the better discovery of the truth." Justices to ad (a) By 53 Geo. III. c. 127, s. 4, it may be to one justice. (b) By the 7 Geo. IV. c. 15, (post, 267), where the justices are patrons of coun the living, the tithes are to be recovered Sect. 5. "That this act, or anything herein contained, shall not extend 1. Summary to any tithes, oblations, payments, or obventions, within the city of Lon- Remedy for, don or liberties thereof, nor to any other city or town corporate where the when due from same are settled by any act of parliament in that case particularly made any Person. and provided.” London, &c. Sect. 6. "That no complaint for or concerning any small tithes, offer- Not to extend to ings, oblations, obventions, or compositions, hereafter due, shall be heard No complaint to and determined by any justices of the peace, by virtue of this act, unless be heard unless the complaint shall be made within the space of two years next after the made within two times that the same tithes, oblations, obventions, and compositions, did be- years. come due or payable; anything in this act contained to the contrary notwithstanding." sessions. Sect. 7. That any person finding him, her, or themselves aggrieved, Persons aggrieved by any judgment to be given by any two justices of the peace, shall and may appeal to may appeal to the next general quarter sessions to be held for that county, riding, city, town corporate, or division, and the justices of the peace there present, or the major part of them, shall proceed finally to hear and determine the matter, and to reverse the said judgment if they shall see cause; and if the justices then present, or the major part of them, shall find cause to confirm the judgment given by the first two justices of the peace, they shall then decree the same by order of sessions, and shall also proceed to give such costs against the appellant, to be levied by distress and sale of the goods and chattels of the said appellant, confirmed, jus as to them shall seem just and reasonable; and no proceedings or judg- If judgment be ment had or to be had by virtue of this act shall be removed or super- tices to give costs, seded by virtue of any writ of certiorari, or other writ out of his majesty's &c. courts at Westminster, or any other court whatsoever, unless the title of Certiorari. such tithes, oblations, or obventions, shall be in question; any law, statute, custom, or usage, to the contrary notwitstanding." [As to appeals in general, see" Appeal," Vol. I.; as to certiorari, see Certiorari," Vol. L] 66 plained of, insist [With regard to the writ of certiorari, it seems a doubtful question whether the word "title" is to be taken in a strict sense, as applying rely to those cases in which the question is to whom the tithes are due, or whether it extends to a question of prescription, modus, custom, or other exemption, which does not negative the prima facie title, but only operates as a legal bar to the demand of tithes. From what fell from Abbott, C. J., in R. v. Jefferys, infra, it should seem the word “title” ought to be taken in its strict sense. (Sed vide R. v. Furness, 11 Mod. 320; R. v. Whitlock, 1 Stra. 264; 1 E. & Y. 750.) Before a certiorari issues, it must be shown that the title was really in question. (R. v. Wakefield, 1 Burr. 485; 2 E. & Y. 153; see ante, "Conviction," Vol. I.] Sect. 8. "That where any person or persons complained of for sub- Persons comtracting or withholding any small tithes, or other duties aforesaid, shall, Ing on any combefore the justices of the peace to whom such complaint is made, insist position, &c.; and upon any prescription, composition, or modus decimandi, agreement or giving security to title, whereby he or she is or ought to be freed from payment of the said not to give judg thes, or other dues in question, and deliver the same in writing to the ment. said justices of the peace, subscribed by him or her, and shall then give to the party complaining reasonable and sufficient security, to the satisfaction of the said justices, to pay all such costs and damages, as upon a mal at law to be had for that purpose, in any of his majesty's courts having cognizance of that matter, shall be given against him, her, or them, in case the said prescription, composition, or modus decimandi, shall not upon the said trial be allowed; that in that case the said justices of the peace shall forbear to give any judgment in the matter; and that then and in such case the person or persons so complaining shall and may be at liberty to prosecute such person or persons for their said subtraction in any other court or courts whatsoever, where he, she, or they might have sued before the making of this act; anything in this act to the contrary notwithstanding." pay costs, justices 1. Summary Remedy for, Questions of modus. [The sessions, on an appeal, may reject evidence of a modus which was not offered to the two justices who made the order. It seems, also, that when due from the power of justices to try questions of tithe under the 7 & 8 Will. III. any Person. c. 6, is taken away by the eighth section of that act, where a question of modus is raised. (R. v. Jeffreys, 1 B. & C. 604; 2 D. & R. 860; 3 E. & Y. 1098, S. C.) Two justices, by an order dated the fifth day of November, 1821, ordered Jeffreys to pay to the lessee of the tithes of the parish of Glemsford, in the county of Suffolk, the sum of 6l. for his tithe of milk and calves, arising in the parish of Glemsford, and due to the lessee, together with his costs and charges. Jeffreys was duly summoned to answer the complaint of the lessee, and appeared before the justices, but offered no evidence of a modus. The sessions, on appeal, confirmed the order, subject to the opinion of the court upon the following case:-The respondent having proved the notice, summons, and order, and his title as lessee, and that the value of the tithe was of the amount demanded, the appellant claimed to be exempted from the payment of the tithe, insisting that it was covered by a modus, and he tendered evidence to prove the existence of such a modus. The court rejected the evidence, being of opinion that they had no power to try the question. Abbott, C. J., after argument, said," As at present advised, I am disposed to think that by modus, in this statute, something different from title is meant. And a the word modus is not to be found in the seventh section, which relate to the certiorari, I think that the writ ought not to have issued. I an also disposed to think, that the eighth section is compulsory, that the party relying upon a modus shall set it up in the manner thereby di rected. The act was intended to apply where there was no question of law as to the right to the tithe; that in such cases the party entitled might have a cheap remedy, which could not be injurious to the party from whom the tithe is due. If the eighth section be not compulsory, this con sequence will follow, that the party called upon to pay may, at his will and pleasure, leave the question of modus to be tried by the justices, ar may withdraw it from their consideration; whereas the other side can have no such option. This, however, is a point of great consequence, and I should have wished for more time to consider it, if our judgment proceeded upon that ground. But upon the other point I entertain no doubt. If it was originally the intention of the party to set up a modas, he should have stated that before the two justices. In making a claim of tithes, the party would come prepared to show the occupation of land by the party refusing to pay, and that titheable matter was produced. A question of modus is something quite distinct from that which the party claiming would come prepared to prove. If, therefore, the modus was not set up in the first instance, the justices at sessions might exercise their discretion as to receiving or rejecting evidence of it. The claimant might otherwise be taken by surprise, and the defendant would obtain a very unfair advantage." Order of sessions affirmed.] A bare assertion not sufficient. [A bare assertion by the defendant of the existence of the prescrip of claim of modus tion, composition, or modus, &c., will not, it seems, suffice to prevent the justices from giving judgment: the defendant must satisfy the justices that there is a bona fide ground for setting up the prescription, &c. (See R. v. Wrottesley, 1 B. & Adol. 648; R. v. Chapelwardens of Milnrow, 5 M. & Sel. 248).] Judgment to be enrolled at next sessions by clerk of peace, &c. Sect. 9. "That every person and persons, who shall by virtue of this act obtain any judgment, or against whom any judgment shall be obtained, before any justices of the peace out of sessions, for small tithes, oblations, obventions, or compositions, shall cause or procure the said judgment to be enrolled at the next general quarter sessions to be holden for the said county, city, riding, or division; and the clerk of the peace for the said county, city, riding, or division, is hereby required, upon tender thereof, to enrol the same; and that he shall not ask or receive for the enrolment of any one judgment any fee or reward exceeding 18.; and that the judgment so enrolled, and satisfaction made by paying the |