Lands and their occupiers may be exempted from the payment of tithes, in part or totally.

fences differ, both as to their nature and as to the proof by which they must respectively be supported: (see the next note :) and, as a general rule, a court of equity will not direct an issue to try a composition real, when the defendant in the suit has, by his answer, only alleged a modus. (Bennet v. Neale, Wightw. 361; Haws v. Swaine, 2 Cox, 179.) However, where there has been a mere oversight in the form of laying a modus, but the mistake does not, in point of fact, materially affect the substance and nature of the defence, courts of equity have sometimes directed an issue according to the truth of the case; (Prevost v. Bennet, 1 Pr. 239; Mallock v. Browse, Ambl. 423; Blake v. Veysie, 3 Dow, 191;) and it seems not inadmissible to lay a defence in the alternative; it is, at least, a course exempt from the objection of being a surprise practised upon the tithe owner. (Leach v. Bailey, 6 Pr. 508.)

A modus was termed rank, when its amount is so large as to have greatly exceeded the value of the tithes at the period when Richard I. departed on his crusade (A. D. 1189), from which period the date of legal memory was, in all cases, formerly held to commence; and the recent statute of 2 Gul. IV. c. 71, which shortened the time of prescription in certain cases, expressly excepted questions of tithe from the operation of the act; but the statute of 2 & 3 Gul. IV. c. 100, enacted, that "when the render of tithes in kind shall be demanded by any corporation sole, then every prescription or claim of a modus decimandi, or of exemption from or discharge of tithes shall be valid and indefeasible upon evidence showing payment or render of the modus, or enjoyment of the land without payment or render of

tithes, money, or other matter or thing in lieu thereof, for and during the whole time that two persons in succession shall have held the office or benefice in respect whereof such render of tithes in kind shall be claimed, and for not less than three years after the appointment and institution or induction of a third person thereto. Provided that, if the holding of such two persons shall have been less than sixty years, it shall be necessary to show such payment or render of modus made, or such enjoyment had, during such further number of years, either before or after such time, as shall be sufficient to make the full period of sixty years, and also the said further period of three years after the appointment and institution or induction of a third person to the same office or benefice, unless it shall be proved that such payment or render of modus was made or enjoyment had by some consent or agreement, expressly made or given for that purpose by deed or writing." And the statute of 3 & 4 Gul. IV. c. 27, after enacting that the word "land" should, in that act, extend to tithes (other than tithes belonging to a spiritual or eleemosynary corporation sole), and that the word "rent" should extend to all sums of money payable out of any land (except moduses or composition belonging to a spiritual or eleemosynary corporation sole), proceeds further to enact, that no land or rent shall be recovered but within twenty years after the right of action accrued; and that, at the determination of the period limited by the act, not merely the right of action, but the title of the party claiming such land or rent shall be extinguished.

The operation of these acts will, by and by, get rid of all disputes as to

modus, and with them, of course, all questions as to the rankness of moduses; but, as the first of the acts cited may not have its full and complete effect for more than half a century to come, it may not be superfluous to intimate, shortly, some of the leading rules on the subject of rankness.

Rankness is merely evidence, throwing suspicion upon the alleged antiquity of the payment: it forms no objection in point of law to the modus. If that can be shown, or fairly inferred, to have existed immemorially, the seeming exorbitance of the payment forms no legal objection to it. (O' Conner v. Cook, 6 Ves. 672; Chapman v. Smith, 2 Ves. sen. 515.) The question of rankness, then, is one of fact, rather than of law, and is usually sent to a jury, when the least doubt arises; indeed, a modus was never established against a parson, before the late act, without a trial at law, if he desired an issue; (Short v. Lee, 2 Jac. & Walk. 497; Williams v. Price, 4 Pr. 156;) but, where the rankness of a modus was unquestionable, and the immemorial antiquity of such excess of payment was not satisfactorily established; it was held, beyond all doubt, competent to courts of equity to decide upon such matters of fact, if they thought proper, without sending the case to a jury; and the exercise of this right was, as the law formerly stood, frequently a merciful saving of expense to all the parties. (Bishop v. Chichester, 2 Br. 163; Jee v. Hockley, 4 Pr. 88; Fisher v. Lord Graves, 1 M'Clel. & Y. 379; Goodenough v. Powell, 2 Russ. 229.)

The objection of rankness was held more safely applicable, with reference to the value of particular things, for which the modus had been set up, than as a rule for judging of the antiquity of a modus dependent on the value of lands. For instance, where

a sum of money was alleged to be payable for a lamb, or any other particular species of produce, it might be easy enough to ascertain what was, at any period of our history, the value of a lamb, or any similar article; and thence to form a fair conjecture, whether the modus prescribed for in discharge of tithe of such articles, could have had its origin in, or before, the twelfth century. But the value of land in a particular parish, and what compensation per acre for tithe it may have been reasonable to give, is a very complicated question. It is at least equally so, when the contest is as to the validity of a farm modus, and the invalidity of such a modus was very rarely, if ever, determined on the ground of rankness, without an issue, if the party setting up the modus desired one. (Atkyns v. Lord Willoughby de Broke, 2 Anst. 403; O'Conner v. Cook, 6 Ves. 672; 8 Ves. 536; Chapman v. Smith, 2 Ves. sen. 514; White v. Lisle, 4 Mad. 224; and see post, note 31, to p. 29.)

For the encouragement of husbandry, whether the grass growing on the headlands of corn-fields be consumed in its green state, or made into hay, the common law exempts it from payment of tithe, provided the headlands are not of greater extent than is fairly required for turning the plough. The same common law exemption extends to after-pasture, and to agistment of such beasts as the parson hath tithes of, and of the farmer's own beasts of the plough. Wood used in hedging or fencing corn of which the parson has the tithe, or for hop-poles where the parson or vicar has tithe of hops, and generally all wood employed in making or repairing the farmer's own utensils of husbandry, or in burning bricks for the purpose of repairing his homestead within the parish, was formerly held,

in like manner, to be by the common law exempted from tithe. (2 Inst. 651, 652; Grysman v. Lewes, Cro. Eliz. 447; Green v. Hun, Cro. Eliz. 702; Jouce v. Parker, Cro. Jac. 575.) With respect to these articles, however, the earlier decisions and dicta must now be qualified. In the modern case of Willis v. Stone, (1 Younge & Jerv. 274,) Chief Baron Alexander, after reviewing all the leading authorities bearing on the question, declared them to stand opposed to each other. His Lordship added, with respect to the exemption of wood used for hop-poles upon a farm, for hurdles to fold sheep, for repairing hedges, for land-draining on the farm, and for fuel in the husbandry house, in early times, the weight of authority is in favour of the rule being a rule at common law; but in after times the weight of authority is the other way. The alleged principle, that, by such an application of the article in question, the incumbent receives uberiores decimas, proves too much. The whole produce of the farm, consumed in the house, would be exempt upon the same ground. Besides, tithes are due the moment the produce is severed and can be conveniently divided; therefore, the subsequent use of the article, not perhaps to be determined for months, ought not to determine the liability to tithe. Lord Hardwicke, (in Walton v. Tryon, 1 Dick. 245,) had previously said, "the subsequent use of a thing cannot add or take away a titheable quality; a case may, indeed, be put, where the use determines whether a thing is titheable, viz. where wood is cut to be burnt in the house of a parishioner, within the parish, in which case it is not liable to tithe; but this is not by common right, but by special custom." (And see Page v. Wilson, 2 Jac. & Walk. 523; Erskine v. Ruffle, Gwill. 965.)

The statute of 2 & 3 Edw. VI. c. 13, s. 5, does give an unquestionable encouragement to agriculture, by enacting that all such barren heath or waste grounds, not discharged from tithes, but which, before that time had lain barren and paid no tithes by reason of the same barrenness, as then were or thereafter should be improved and converted into arable or meadow ground, should from thenceforth, after the end and term of seven years next after such improvement, pay tithe for the corn and hay growing thereon. By the previous section, all former legal discharges from tithe were preserved : and the section next following provides, that, if the barren lands had before that time paid any tithes, the owners should, for seven years after the improvement of the ground, pay such kind of tithe as was paid for the same before the said improvement.

The criterion for determining whether land be, or be not, of such a nature as to come within the purview of this statute, is, to inquire whether it does, or does not, require extraordinary expenditure, either in manure or labour, to bring it into a proper state of cultivation. (Warwick v. Collins, 3 Mau. & Sel. 362; 5 Mau. & Sel. 171; Kingsmill v. Billingsley, 3 Pr. 472.)

If an estate be exempt from tithes, a common appendant or appurtenant thereto is entitled to the same exemption. (Lambert v. Cumming, Bunb. 138.) But, where an estate in one parish has a right of common appurtenant in another parish, at common law, and by general presumption, all tithes, renewing upon the common are due to the incumbent of the parish in which the common is situate: custom may, however, vary this, and assign the tithe to the incumbent of the parish in which the tenement, whereto the common is appendant, is situated. (The Bishop of Carlisle v. Blain, 1 Y. & J. 131.)

it seems, though laymen, may also be discharged, if a prescription comprehending them be alleged and proved, but not otherwise. (Bishop of Lincoln v. Cooper, Cro. Eliz. 216; Wright v. Wright, Cro. Eliz. 511.) Where the rector or vicar is in possession of glebe within the parish, neither of them will pay tithe to the other in respect of such occupation, (Warden, &c. of St. Paul's v. The Dean, 4 Pr. 77,) unless there be some special provision touching the subject in the endowment of the vicarage. (Blinco v. Barksdale, Cro. Eliz. 579; Walrick v. Cropton, Gwill. 470; Sanders v. Ryall, Gwill. 537.)

The reader who is disposed to go further into the doctrine of appropriations, and to investigate the origin of, and the motives inducing, the practice, may find it learnedly discussed in the report of the great case of Grendon v.Bishop of Lincoln, Plowd. 493-503. And there is a good popular account of it in Burn's Eccl. L., under the proper title.

It has been thought convenient thus to bring together a summary of the leading exemptions from the ordinary liability to payment of tithe to the parson of the parish, instead of dividing the subject; though such a division would have accorded with the distinct mention, in the text, of several topics alluded to in this note, some part of which (it may be proper to say) is extracted from Hovenden's Supplement to Vesey, Junr.'s Reports.

(28) As to the distinction between a composition real and a modus, see the last note. Lord Hardwicke (in the case of The Attorney General v. Bowles, 3 Atk. 808) said, that “real composition does not mean any substantial permanent security for the payment of the composition; but land substituted in lieu of tithes, or a rentcharge issuing out of land." Gibson,

however, (in his Cod. tit. 30, c. 5,) Watson, (Cl. L. 501,) and Degge, (pt. 2, c. 20,) agree that a composition, in consideration of money payments, may be a real composition, just as well as if the recompense to the incumbent consisted in, or arose out of, lands. They also say, that any other thing rendered or done for the ease, profit, and advantage of the parson or vicar to whom the tithes did belong may constitute a real composition. A great majority of the twelve Judges (if indeed any one was dissentient as to this point) appear to have considered this a just account of the meaning of the word, in Knight v. Halsey (2 Bos. & Pull. 205). It had been so held, long before, by the court of King's Bench, in the case of Sydowne v. Holme, (W. Jones, 369,) as well as by Mr. Justice Reynolds, in Chapman v. Monson, (Mosely, 286,) with whom, as appears by the report of the same case in Fitz-Gib. 120, Lord King, C., and Mr. Justice Fortescue, agreed. Such also was, apparently, the opinion of Chief Baron Eyre, in Hawes v. Swayne, (2 Cox, 179,) as it clearly was of Baron Wood, in the case of Bennett v. Neale (Wightw. 359). And that, in Lord Eldon's opinion, a money payment may be a composition real, seems a necessary inference from several passages of his Lordship's judgment, in White v. Lisle (3 Swanst. 346, 347, 348). Our author, as will be seen in page 30, thought every modus was to be referred to some real composition. The balance of authorities, therefore, seems in favour of holding, that a money payment may constitute a good composition real; and it should be recollected that the contrary dictum of Lord Hardwicke, above cited, though it has been adopted in many of the text books, was merely an obiter