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is simply unlawful, no such prescription can be main-
tained. If no tithes have been paid, a tithe, founded
upan mere non-payment, is simply a prescription in
non decimando. Evidence of length of possession the
court can pay no regard to; for the poffeffion must
have been unlawful, and the court is therefore bound
to decree in favour of the common right. No pre-
sumption can be admitted to support a mere simple
prescription in non decimando. If we depart from this
rule, we overturn the whole law upon the subject;
but there is a great difference between a claim,
founded upon a mere non-payment of tithes, and a
claim supported by evidence of actual enjoyment of the
pernancy of the tithes. The title is not unlawful:

have been a good title, derived to the party in possession. The title therefore not being simply unlawful, long poffeffion is evidence of the title. The case of Fanshaw v. Rotheram, stated at the bar and

Vide 3 Gwill. determined by Lord Northington, appeared to have 1177. been mistaken. The ground of that determination seemed to have been, that, however doubtful the case stood as to title, there had been long possession. 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 possession. The doctrine was good, applied to that or to this case. There was no difference betwen a lay impropriator and a rector. The lay impropriator becomes, as it were, a spiritual person; he holds it in the same 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


G 3

Jennings v.
3 Gwill. 952.
Edwards v.
Lord Vernon,
3 Gwill. 1177

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

The other Barons concurred.

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$ 97. A bill was filed in the Court of Chancery by John Strut, as patron in fee of a rectory, and as lessee for years

of all the tithes under the rector presented 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 answer 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 some farms with the two-thirds of the tithes : other leases were made, expressly subject only to one-third of the tithes to the rector.

It was contended on the part of the plaintiffs, that the defence, though stated informally, was simply a prescription De non decimando in a que estate : there could not be such a prescription. If they claimed a portion of the tithes, that must be derived under a title from an ecclesiastical person; and they could not so claim, having made their defence upon the ground of a lay fee in the lord.


For the defendants, it was said, 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 same family who had the tithes, had the manor ; but it was not asserted, that the lord took them in that character. It was so substantially 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 such a possession, which might have a lawful commencement, by calling on the defendants to shew a lawful commencement; and cited the cases of Fanshaw v. Rothen ram, and Scott v. Ayrey, and Edwards v. Lord Vernon.

Lord Chancellor Eldon said, the defence was very fairly to be collected from the answer, which had set out all the facts that constituted the defence, and put the plaintiff into possession of all the case he was to meet. It stated different instruments, family conveyances, purchases, securities made, and recoveries; and, wherever it was neceffary to describe specifically the things which passed, as upon the recovery in the writ of entry, upon which the fine to the crown is taken, the two-thirds of the tithes are particularly mentioned. The parol evidence was the strongest, that could be of reputation. His Lordship said, 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 jurisdiction to affect purchasers; in the course of this long period, during which no tithes had been paid to the rector beyond a third part, there must have been many purchases; 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 some of the leases, the lands were described expressly, as subject to one-thirtieth to rector; in others, the farm was let, and the two-thirds of the tithes were particularly specified as demised. On the other hand, when the lessee entered, he did not merely retain, he paid tithes: for he paid a thirtieth instead of a tenth, and that was clearly an ouster quoad the two-thirds retained. It was full notice to all succeeding rectors, that it was not by fraud or substraction, but an affertion of right, in opposition to that of the rector, and a clear adverse possession strongly manifested by paying only one-thirtieth instead of one-tenth. Therefore, the difference was only in words between this case and that of Scott v. Ayrey. The manner in which the owner had exercised his right, was by demising the land, and the tithes of the land, to the same person,


and receiving an accumulated sum both for the tithe and the land. It was not necessary to enter into the discussion of the title: he could conceive a clear ground; the tradition of the parish shewed it. Was it necessary to put the subjects of this kingdom to account for their tithes, antecedent to the reign of Hen. 8.? If so, it was not for a court of equity to put them under that inquisition : therefore he was perfectly warranted in following precedents so very respectable.

The bill was dismissed with costs.

$ 98. A prescription De modo decimandi, usually Prescription called a Modus, is, where custom has established a cimandi.

De modo departicular manner of tithing, different from the general mode of taking tithes in kind. This is sometimes a pecuniary compensation, as two-pence an acre for the tithe of corn. Sometimes it is a composition in work and labour; as, that the parson shall only have the twelfth cock of hay, in consideration 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.

S 99. It is probable, that every modus had its com- 6 Bac. 743. mencement by deed ; because a composition for tithe can never become a modus, unless the patron and ordinary be parties to it, or it be confirmed by them.

$ 100. A modus may be prescribed for, without Grant's Cafe,

ni Rep. 19. producing the deed by which it was created : for, 2 P. Wms.

wherever 573

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