ment of all tithes, in consideration of some land, or other real recompence, to the parson or vicar, in lieu and satisfaction of such tithe. This kind of composition was formerly permitted, because it was supposed that the clergy would be no losers by it, as the consent of the ordinary, whose duty it was to take care of the church in general, and of the patron, whose interest it was to protect that particular church, were both required, to render the composition effectual. 80. No composition can be good, unless it was made before the 13 Eliz.; for, by a statute made in Tit. 32. c. 2. that year, it is enacted, that no parson or vicar shall make any conveyance of the estates of their churches, other than leases for three lives or 31 years. And though there have been several decrees made by 7 Bro. Parl. courts of equity to confirm compositions, made with Ca. 34 & 44. the consent of the parson, patron, and ordinary, subsequent to the 13 Eliz., still they are not held to be binding on the succeeding incumbents. Swain, 81. It was formerly held, that a composition real could not be established without showing the deed by which it was created, or proving the actual existence of such deed. It was, however, laid down in a modern case, that although, in order to establish a Hawes v. real composition for tithes, it was not now considered 2 Cox, R. as absolutely necessary to produce the deed, yet evi. 179. dence must be given of such deed having existed. That where such evidence 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 will be evidence of a prescriptive payment. That although the Court had very properly relaxed in its practice, and did not now, as formerly, insist upon the production of the Sawbridge De Modo original instrument, yet they certainly expected that, in order to establish a real composition, the evidence should show something that could distinguish it from a prescriptive payment. 82. In a subsequent case it was said, that where there has been a composition real, within time of memory, its commencement must be shown, though it is not necessary to produce the deeds under which it took place. Presumptions are admitted in this, as in other cases; and the existence of such deeds may be inferred from other evidences. It is not necessary that the consent of all the parties should be by the same deed: this may frequently not happen. In the case of the King, who consents by letters patent, it never can take place. But that a composition real could not be supported by evidence of immemorial payment. Prescription 83. A prescription de modo decimandi, usually Decimandi. called a modus, is where an immemorial custom has established a particular manner of tithing, different from the general way of taking tithes in kind; and the circumstances which are necessary to make a good and sufficient modus, are laid down by Șir W. Blackstone and Doctor Burn. 2 P. Wms. 573. 84. It is probable that every modus had its commencement by deed; because a composition for tithes can never become a modus, unless the patron and ordinary be parties thereto, or it be confirmed by them. But a modus may be prescribed for, without producing the deed by which it was created; for, wherever there has been a constant annual payment for time immemorial, it shall be intended that such payment had a proper commencement. 85. In the case of hemp, flax, and madder, it has been stated, that a modus is established by act of parliament. De non De 86. A prescription de non decimando is a claim to Prescription be entirely discharged from tithes, and to pay no cimando. compensation for them. This may be a privilege annexed either to the persons holding the lands, or to the lands themselves. 511. Hertford v. Leech, 87. The King being persona mixta, is not only Cro. Eliz. capable of having tithes, but may also prescribe to be Hard. R. 315. discharged from the payment of tithes; therefore, lands lying within a forest, and in the hands of the W. Jones, King, do not pay tithes, although they are within a parish. But this privilege only extends to the King's lessee, not to his feoffee. 387. 88. Spiritual persons, or corporations, being capable of having tithes in pernancy, may prescribe to be discharged generally; so that no tithe shall be paid of their lands, nor any recompence for them. Besides, it is a maxim of law, that ecclesia decimas non 4 Rep. 44 a. solvit ecclesiæ; and a spiritual person may prescribe de non decimando, for himself, his farmers, and tenants, and also for his copyholders. For, by this means, it Crouch v. is to be presumed that the spiritual person has greater Cro. Eliz. fines and rents. 89. The rector or parson of a parish is not liable to the payment of tithes to the vicar, nor the vicar to the rector; and a lay rector is also exempted from paying tithes to the vicar out of the glebe, as long as he holds it in his own hands; but upon the death of the spiritual or lay rector, or of the vicar, his executor is liable to the payment of tithes out of the growing crop. 90. A prescription de non decimando may also be annexed to the land itself, though in the possession of lay persons; but this can only arise from the following circumstances. Frier, 784. Blenco v. Marston, Cro. Eliz. 479. 578. 2 Comm. 32. Hob. 309. Spiritual persons, or corporations, were always capable of having their lands totally discharged of tithes by various ways.-1. By real composition. 2. By papal bulls of exemption. 3. By unity of possession; as when the rectory of a parish, and the lands in the same parish, both belonged to a religious house, those lands were discharged of tithes by this› unity of possession. 4. By prescription; having never been liable to tithes, by being always in spiritual hands. 5. By virtue of their order; as the Knights Templars, Cistercians, and others; whose lands were privileged by the Pope with a discharge of tithes. ́91. These exemptions from tithes would have ceased upon the dissolution of the abbeys, and the lands become again subject to tithes, were it no. enacted by the statute 31 Hen. VIII. c. 13. § 21., that all persons who should come to the possession of the lands of any abbey then dissolved, should hold them free and discharged of tithes, in as large and ample a manner as the abbeys formerly held them. 2 Comm. 32. And Sir W. Blackstone says, that from this original have sprung all the lands, which, being in lay hands, do at present claim to be tithe-free. For, if a man can show his lands to have been such abbey lands, and also immemorially discharged from tithes, by any of the means before mentioned, this is now a good prescription de non decimando. But he must show both these requisites; for abbey lands, without a special ground of discharge, are not discharged of course; neither will any prescription de non decimando avail in total discharge of tithes, unless it relates to such abbey lands. Lamprey v. Rooke, Amb. R. 291. 92. These exemptions from tithes only extended to the lands of the religious houses, quamdiu propriis manibus excoluntur; not when in the occupation of their lessees or farmers. And it was formerly held, Redman, that this exemption applied only to those who had an Wilson v. estate of inheritance, and not to tenants for life. It Hard. 174. has, however, been resolved, that a tenant for life, under a settlement, is entitled to the exemption. Muds, in 93. A person was tenant for life, under a settle. Hett v. ment, of lands which were formerly part of the pos- Schach.1799. sessions of the Cistercian order, and by that means Gwill, 1515. exempt from tithes, while in the manurance of the owner. It was contended, that the tenant for life had not such a quantity of interest as would support that privilege that to entitle the lands to that exemption, the person occupying them must be owner of the inheritance; he must have the same estate in him which the monastery had. In the case of Wilson v. Redman, the Court held that tenant for life or years was not within the statute, but that tenant in tail, who had an estate of inheritance, was discharged quamdiu propriis manibus, &c. Lord Ch. B. said, it was admitted that a tenant in tail was entitled to the exemption claimed; but it was argued, that a tenant for life, under a settlement, was not. It was said, that the tenant must hold the lands as the monastery held them, else the privilege could not attach. But it was impossible that the lands could now be holden precisely in the same manner as they were holden by the monastery. The monastery had them to them and their successors. Now, a man had them to him and his heirs. But a fee simple may be divided into portions, into different estates for life, in tail, and remainder in fee. Where would be the difficulty to say, that the tenants of each portion should have the benefit as they succeed. The case of Wilson v. Redman had been cited; but from an extract from the |