42 (f),) any power to deprive the defendant of the plea given by the stat. 21 Jac. I. c. 4, s. 4 (g), this being a penal action. Plea that the plaintiff sowed the corn, and sold it to the defendant, is not a good plea, because such sale will not excuse the payment of tithes (h). The Statute of Limitations (21 Jac. I. c. 16,) cannot be pleaded to this action (i); for that statute-sect. 3, is confined to actions of debt grounded upon a lending or contract, without specialty, and to debt for arrears of rent. But by stat. 53 Geo. III. c. 127, s. 5, "No action shall be brought for the recovery of any penalty for not setting out tithes, nor any suit instituted in any court of equity, or in any ecclesiastical court, to recover the value of any tithes, unless such action shall be brought or such suit commenced within six years from the time when such tithes became due."

The stat. 3 & 4 Will. IV. c. 27 (k), for the limitation of actions and suits relating to real property, extends to tithes, (except tithes belonging to a spiritual or eleemosynary corporation sole,) and by sect. 43, no person claiming any tithes, for the recovery of which he might bring an action or suit at law or in equity, shall bring a suit or other proceeding in any spiritual court to recover the same, but within the period during which he might bring such action or suit at law or in equity. Under this statute it has been decided by Lord Langdale, M. R. (1), that the right to tithes as against an ecclesiastical corporation aggregate is barred by non-payment for twenty years. It was objected to this construction, that its effect was to repeal to some extent the stat. 2 & 3 Will. IV. c. 100, by cutting down the period of sixty years to twenty; but Lord Langdale held, that the plaintiffs were barred, and that, notwithstanding an outstanding lease of the whole tithes of the parish, and such lease being in general words, and not having been granted with a view to the particular tithes claimed by the bill, and nothing having been received by the lessee in respect of those tithes. An appeal from this decision is now pending.

Evidence.

Long possession, acquiesced in by the defendant (m), is primâ facie evidence of the rector's title against defendant, and supersedes the necessity of proving institution, induction, or reading Thirty-nine Articles (12). The plaintiff declared as farmer of the rectory of

(f) See ante, p. 156.

(g) Earl Spencer v. Swannell, 3 M. & W. 154; 6 Dowl. (P. C.) 326.

(h) Moyle v. Ewer, 2 Bulst. 183; Cro. Jac. 361, S. C.

(i) Talory v. Jackson, Cro. Car. 513, recognized in Cockram v. Welby, 1 Mod. 246.

(k) See ante, p. 742.

(1) Dean and Chapter of Ely v. Bliss, 5 Beav. 574.

(m) Clayt. 48, pl. 83. See also Chapman v. Beard, 4 Gwm. 1482, and Harris v. Adge, 2 Gwm. 560. See also Ganson v. Wells, 8 Taunt. 542.

(12) "In penal actions on stat. 2 & 3 Edw. VI., it has always been

Friston, in Sussex (n), and proved himself lessee of J. S., who was lessee to the dean and chapter of Chichester, to whom the rectory belonged, and produced the lease from J. S., but did not produce the lease from the dean and chapter to J. S.; however, upon proving that he received tithe of others, as farmer, it was holden sufficient. So where the plaintiff (o), being farmer under the dean and chapter of Canterbury, proved that he had received tithes for some years as such; it was holden sufficient, without producing any lease. The plaintiff declared on a lease made to him for six years by the parson (p), if the parson should so long live and continue parson there. The jury found the lease for six years, if the parson should so long live, but the words "if he continue parson" were not in the lease. The variance was holden to be immaterial; 1st, for the additional words in the declaration, "if he should so long continue parson," are only what the law implies; 2ndly, because the lease is not the ground of the action, nor is the declaration founded upon the lease, but upon the carrying away the tithes. The declaration stated (q), that the tithes of turnips were yielded and paid, and were of right due and payable within forty years next before the making the stat. Edw. VI." The second count contained a similar averment, as to the tithes of potatoes. After verdict for the plaintiff, it was moved to set it aside, on the ground that the averments were not, and could not be, proved, inasmuch as turnips and potatoes were not cultivated before the statute of Edw. VI. But the court said, that the true construction of the stat. Edw. VI. was, that if the lands charged were subject to the payment of tithe within the period mentioned in the statute, that was sufficient to prove the allegation in declarations of this kind, and to support the plaintiff's action; that if it were clear that nothing but wheat had ever been sown upon this land, still that would not preclude the tithe of other titheable produce from being taken, and that as no evidence had been offered at the trial to

(n) Selwyn v. Baldy, Bull. N. P. 188, per Pemberton, C. J., Sussex Ass. 1682. (0) Hartridge v. Gibbs, Bull. N. P. 188.

(P) Wheeler v. Heydon, Cro. Jac. 328. (g) Hallewell v. Trappes, 2 Bos. & Pul. N. R. 173.

holden sufficient proof against the defendant, that the party suing is in the act of receiving the tithes from defendant." Per Lord Kenyon, C. J., in Radford, q. t. v. M'Intosh, 3 T. R. 632; where it was holden, that in an action for penalties on the statute laying a tax on post-horses, brought by the farmer of the tax, it is not necessary for the plaintiff to give in evidence his appointment by the lords commissioners of the Treasury, or the commissioners of the stamp duties authorized by them. Proof that the defendant has accounted with him, as farmer, for the duties, is sufficient. A lay impropriator is entitled to all the favourable presumptions, to which a rector is entitled, both with respect to time and exemptions; and, consequently, if he prove himself impropriator, it will be sufficient without proving the receipt of tithes within time of memory. Whieldon v. Harvey, 3 Gwm. 951.

prove that turnips and potatoes were not cultivated previously to the stat. Edw. VI., they could make no such presumption against the justice of the case, even though such a fact might be asserted by persons who had written upon the subject. They added, that whatever might be the case with respect to potatoes, their own information led them to believe that turnips were in cultivation, in this country, before the stat. of Edw. VI. By the stat. 5 & 6 Will. IV. c. 75, it is enacted, that turnips severed from the ground, for the purpose of being consumed by sheep or cattle on the land, and not otherwise removed, shall be liable to tithe in the same manner and to the same extent only as if they had been consumed by the sheep or cattle without having been severed; and from analogy, it has been decided (r) that milk drawn from the cow by hand, and given to the calf before it becomes titheable, is exempt from tithe as well as milk sucked by the calf.

The defendant (s) under nil debet may give in evidence a modus, or customary payment, and thereby defeat the plaintiff's action. "All moduses were at first upon an agreement (t) between the parson, patron, and ordinary, by some instrument in writing in the nature of a contract or composition, which, though decayed by time, or lost by accident, yet being run out into a prescription remained good, and the court would not break in upon such ancient usages upon slight reasons, for fear of introducing general inconvenience." A modus must have been immemorial, that is, it must have existed before the time of Richard the First's return from the Holy Land: but as this could not be proved by living witnesses, and in many cases not by written evidence, it was sufficient to prove that such a sum had been paid as far back as living memory extended; and that being established, it lay on the other side to prove the negative. But see stat. 2 & 3 Will. IV. c. 100, ante, p. 1305. A modus ought to be equally certain to the parson or lay impropriator, as the tithe in lieu of which it comes (u), or, as it is expressed in Salk. 657, a modus ought to be as certain as the duty which is destroyed by it. A modus is sometimes payable in respect of a particular farm, and then it is called a farm modus. A modus may also be payable for part of a farm; as where a farm lay in three different parishes, and a general modus was set up for all tithes for that part of the farm which lay in one of the parishes, such modus was holden to be good (x); for the minister of one parish, and the land-owner might have thought proper to contract for a money payment for so much of the farm as lay in one parish, although the ministers of the other two parishes might not have thought proper so to contract. A pension is a sum of money paid in respect of lands which are

(r) Fisher v. Birrell, 2 Q. B. 239; 2 G. & D. 725.

(s) Charry v. Garland, Dorset Lent Ass. 1699, coram Ward, C. B., 3 Gwm. 951.

(1) Per Lord Hardwicke, Ch., Hard

VOL. II.

castle v. Smithson, MSS. Serjt. Hill, vol. 7, p. 63, and 3 Atk. 245.

(u) Per Lord Hardwicke, 3 Atk. 246. (x) Per Lord Eldon, Ch., in White v. Lisle, July, 1819.

2 s

tithe free, and is quite a different thing from a composition either temporary or real. Where a modus has covered a farm and common, or right in nature of right of cominon and all tithes arising therefrom, and then by an Inclosure Act an allotment is made, on which new crops of a different nature from those raised before are raised, the modus will cover such new crops (y). A modus will cover the tithe of a common, if that common be inclosed (z). Where, in a declaration in debt for not setting out tithe of hay, it was averred, that there was an immemorial custom as to the setting out the tithe within the parish, and the limits, bounds, and titheable places thereof; it was holden (a), that this averment was proved by evidence that the custom prevailed in all parts of the parish where tithe of hay was set out, and that proof of a modus for hay in one township made no difference. Evidence (b) of a right to all kinds of tithes, in a lay impropriator, up to a given time, and of the receipt of the corn tithe since that time by another party, is evidence from which a jury may, if they think fit, infer a grant of all the tithes by the first-mentioned impropriator to such latter party; and, therefore, the latter, in support of a claim for hay tithe, may give documentary or other evidence of hay tithe having been taken by the presumed grantor. A terrier cannot be received in evidence, unless it comes from the proper repository (c), that is, the registry of the bishop of the diocese; but if the original cannot be found there, it seems (d) that a copy from the parish chest would be admissible. An ancient document, in the nature of a terrier, produced from the proper custody, and under the proper authority, although without date, and signed by various persons, without designating their character, has been holden (e) to be admissible. An ancient statement concerning the payment of tithes of a parish by a modus, signed by the rector for the time being, was holden (ƒ) to be evidence against a succeeding rector as an admission by his predecessor, although it was found among the title-deeds of a landowner in the parish, and although a terrier was produced from the bishop's registry, which was silent as to the modus.

The word tithes (g) in ancient documents does not necessarily import tithes in kind; but may mean, according to circumstances, either tithes in kind or a money payment in lieu thereof.

Verdict.

If the verdict be given for the plaintiff (h), it is incumbent on the

(y) Stockwell v. Terry, 1 Ves. 117, 118, per Lord Hardwicke, Ch.

(z) Steele v. Manns, 5 B. & A. 22; Askew v. Wilkinson, 3 B. & Ad. 152.

(a) Pigott v. Bayley, 6 B. & C. 16, Littledale, J., dissent.

(b) Bayley v. Drever, 1 A. & E. 449; 3 Nev. & M. 885.

(c) Atkins v. Hatton, Gwill. 140.
(d) S. C.

(e) Hall v. Farmer, 2 Younge & Coll.

145.

(ƒ) Maddison v. Nuttall, 6 Bingh. 226.
(g) Beck v. Bree, 1 Cr. & J. 246.
(h) Degge, 6th ed. 404.

jury to find how much of the debt demanded by the declaration is due to the plaintiff, which is to be done by trebling the value of the tithe subtracted. The plaintiff shall recover according to the verdict (i); hence, where, in the statement of the treble value of the tithe, there was error in the calculation, and the plaintiff demanded less than he was entitled to; on motion in arrest of judgment after verdict, an exception was taken on the ground that the plaintiff, having demanded less than was due, ought to have acknowledged satisfaction for the residue; but the court overruled the objection, observing, that the demand in this case was not for any sum certain, as in an action grounded on a specialty, but only for so much as should be given by the jury, the plaintiff being entitled to recover, not according to his demand, but according to the verdict. Where it was found, by a special verdict (k), that the abbot of A. was seised in fee of certain land, and that he and his predecessors held the land discharged of tithe, and that he had granted the land to All Souls' College; it was holden, that the prescription was personal to the abbot, and did not run with the land, and that it could not be intended to be a discharge by a real composition, it not being so pleaded, nor found by the jury to be so. An action on this statute being brought by the party grieved, for the purpose of trying a right, and being more beneficial to the defendant, than to be carried into the spiritual court, is not considered as a penal action brought by a common informer (1). Consequently a new trial will be granted, where it is clear that the verdict has been given for the defendant against the weight of evidence (m), although, in penal actions, the courts will not permit a verdict for the defendant to be disturbed on this ground (n).

Costs.

As to the costs, see the remarks on the second section, ante, p. 1300, and post, under tit. "Judgment," and stat. 3 & 4 Will. IV. c. 42, s. 32, ante, p. 40.

Judgment.

This being an action for the recovery of the treble value of the tithes, in a case where the single value was not recoverable at common law, did not fall within the stat. of Gloucester (13); the

(i) Pemberton v. Shelton, Cro. Jac. 498; 2 Rol. R. 54, S. C.

(k) Bolls v. Atkinson, 1 Lev. 185. (1) See Earl Spencer v. Swannell, 3 M. & W. 154.

(m) Holloway v. Hewitt, Trin. 13 Geo. III. 10 MSS., Serjt. Hill, p. 339; Lord Selsea v. Powell, 6 Taunt. 297, S. P. (n) Brook q. t. v. Middleton, 10 East, 268.

(13) "Where a statute gives damages by creation, there the plaintiff shall recover no costs; the reason is, because damages being given out of course, and where the common law does not give them, and the statute