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is fimply unlawful, no fuch prescription can be maintained. If no tithes have been paid, a tithe, founded upan mere non-payment, is fimply a prefcription in non decimando. Evidence of length of poffeffion the court can pay no regard to; for the poffeffion muft have been unlawful, and the court is therefore bound to decree in favour of the common right. No prefumption can be admitted to fupport a mere fimple prescription in non decimando. If we depart from this rule, we overturn the whole law upon the fubject; but there is a great difference between a claim, founded upon a mere non-payment of tithes, and a claim fupported by evidence of actual enjoyment of the pernancy of the tithes. The title is not unlawful: there may have been a good title, derived to the party in poffeffion. The title therefore not being fimply unlawful, long poffeffion is evidence of the title. The cafe of Fanfhaw v. Rotheram, ftated at the bar and determined by Lord Northington, appeared to have been mistaken. The ground of that determination feemed to have been, that, however doubtful the cafe ftood as to title, there had been long poffeffion. The claim was of a portion of tithes the parties might have a good title; and it was not right for a court of equity to disturb the poffeffion. The doctrine was good, applied to that or to this cafe. There was no difference betwen a lay impropriator and a rector. The lay impropriator becomes, as it were, a spiritual perfon; he holds it in the fame right. If it is not proper to disturb a poffeffion in favour of a lay impropriator, it is not proper to disturb it in favour of a rector. He concluded by saying, he agreed with the Lord Chief Baron, upon the ground of great length

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length of poffeffion, and the claim being of a portion of tithes, which might be lawful, that the bill ought to be difmiffed.

The other Barons concurred.

§ 97. A bill was filed in the Court of Chancery by John Strut, as patron in fee of a rectory, and as leffee for years of all the tithes under the rector prefented by him, against Baker, an occupier of lands in the manor of Graces in that parish, and Sir B. Bridges lord of the manor, and owner of the lands. The object of the bill was, to establish the right of the rector to the tithes, and for an account. The anfwer of Baker stated, that by antient and immemorial usage within the manor of Graces, or by other lawful ways and means, the lands in his occupation had been exempted from payment of tithes to the rector in the proportion of two-thirds of all the tithes; and that the lord of the manor was intitled to those two-thirds. The defendants then deduced their title from 37 Hen. 8. The rector never received more than one-third of the tithes: the lord of the manor received the other two-thirds, and let fome farms with the two-thirds of the tithes: other leafes were made, exprefsly fubject only to one-third of the tithes to the rector.

It was contended on the part of the plaintiffs, that the defence, though ftated informally, was fimply a prefcription De non decimando in a que estate: there could not be fuch a prefcription. If they claimed a portion of the tithes, that must be derived under a title

from

from an ecclefiaftical perfon; and they could not fo claim, having made their defence upon the ground of a lay fee in the lord.

For the defendants, it was faid, that the defence was stated inartificially; but it was not meant to state an exemption from tithes, but an exemption from paying to the rector, because that portion belonged to the lord. It happened, that the fame family who had the tithes, had the manor; but it was not afferted, that the lord took them in that character. It was fo fubftantially stated, that the court would leave the plaintiffs to law, according to the late uniform practice of that court and the court of exchequer. Where there had been an actual pernancy of the profits by lay-hands, under conveyances as lay-property, for a great while, the court would not by equitable aid disturb fuch a poffeffion, which might have a lawful commencement, by calling on the defendants to fhew a lawful commencement; and cited the cafes of Fanfhaw v. Rothe ram, and Scott v. Ayrey, and Edwards v. Lord Vernon.

Lord Chancellor Eldon faid, the defence was very fairly to be collected from the anfwer, which had fet out all the facts that constituted the defence, and put the plaintiff into poffeffion of all the cafe he was to meet. It stated different inftruments, family conveyances, purchases, fecurities made, and recoveries; and, wherever it was neceffary to defçribe fpecifically the things which paffed, as upon the recovery in the writ of entry, upon which the fine to the crown is taken, the

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the two-thirds of the tithes are particularly mentioned. The parol evidence was the strongest, that could be of reputation. His Lordship faid, he was glad to have been furnished with the authorities, in which the courts of chancery and exchequer had refused to aid, against a long poffeffion, accompanied with family deeds and purchases, any inquiry into the right by which tithes were held. Courts of equity had no jurifdiction to affect purchafers; in the courfe of this long period, during which no tithes had been paid to the rector beyond a third part, there must have been many purchafes; and Lord Northington laid particular stress upon that. Why was a court of equity to interfere to destroy a title, acquired under a purchase for a valuable confideration? In Scott v. Ayrey, there was an actual occupation of the tithes. What was the evidence here? In fome of the leafes, the lands were defcribed exprefsly, as fubject to one-thirtieth to rector; in others, the farm was let, and the two-thirds of the tithes were particularly specified as demifed. On the other hand, when the leffee entered, he did not merely retain, he paid tithes for he paid a thirtieth instead of a tenth, and that was clearly an oufter quoad the two-thirds retained. It was full notice to all fucceeding rectors, that it was not by fraud or fubftraction, but an affertion of right, in oppofition to that of the rector, and a clear adverfe poffeffion ftrongly manifefted by paying only one-thirtieth instead of one-tenth. Therefore, the difference was only in words between this cafe and that of Scott v. Ayrey. The manner in which the owner had exercifed his right, was by demifing the land, and the tithes of the land, to the fame person,

and

and receiving an accumulated fum both for the tithe and the land. It was not neceffary to enter into the difcuffion of the title: he could conceive a clear ground; the tradition of the parifh fhewed it. Was it neceffary to put the fubjects of this kingdom to account for their tithes, antecedent to the reign of Hen. 8. If fo, it was not for a court of equity to put them under that inquifition: therefore he was perfectly warranted in following precedents so very refpectable.

The bill was difmiffed with cofts.

De modo de

cimandi.

§ 98. A prescription De modo decimandi, ufually Prescription called a Modus, is, where custom has established a particular manner of tithing, different from the general mode of taking tithes in kind. This is fometimes a pecuniary compenfation, as two-pence an acre for the tithe of corn. Sometimes it is a compofition in work and labour; as, that the parfon fhall only have the twelfth cock of hay, in confideration of the owner's making it up for him. In short, wherever a new mode, different from the general law of tithing exists, it is called a modus decimandi.

$ 99. It is probable, that every mencement by deed; because a compofition for tithe can never become a modus, unless the patron and ordinary be parties to it, or it be confirmed by

modus had its com- 6 Bac. 743.

them.

§ 100. A modus may be prescribed for, without producing the deed by which it was created: for,

wherever

Grant's Cafe,

11 Rep. 19. 2 P. Wms.

573.

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