corn, grain, and hay. But corn, grain, and hay could not be part of what grew on a common. The tithes that arose upon this common (appendant to Swardland demefne) could have been only tithes of agiftment, or of lambs, calves, wool, milk, and other things that could be the produce of a common. Now a modus or other compenfation must be in lieu of thefe fpecific tithes. This exemption therefore cannot relate to any other tithes, but such as could in their nature have arisen out of the common, whilft it continued common. —— By lord Mansfield chief juftice: The cafe of Stockwell and Terry differed very much from the present cafe. The modus infifted upon in that cafe extended to all kinds of tithes; whereas the exemption infifted on in the present cafe is confined to the specific land called Swardland demefne, and doth not extend to the right of common. Here is no equivalent at all for the tithes of agiftment, of wool, milk, lambs, or any other tithes of fuch a kind as could arife upon a common. The equivalent goes only to corn, grain, and hay; the tithe whereof could not arife upon the common, whilft it remained a common. In Stockwell and Terry, the rector was, as owner of the glebe, a party to the act of parliament: Here, the impropriator is not a party to this act of parliament. And there the modus covered the right of common; it was a modus of 15 s. which was paid for the Grange farm, in lieu of all tithes arifing upon it, and of all the tithes of all the cows and fheep belonging to that farm that should be depaftured on the faid Down, which was afterwards inclosed and allotted to it. So that the modus covered not only the Grange farm itself with its appurtenances, but the common allo: which is not the prefent cafe. In that cafe, 'Lord Hardwicke decreed, that the modus should ftand for the allotted lands, as well as for the Grange farm and its appurtenances; and accordingly, he difmiffed the bill as to thofe lands, which the modus covered: But as to all the other lands of the common, which had before used to pay tithe of wood, agiftment, and other fmall tithes, he decreed an account. Here, all rights are faved, generally, by this act of 26 G. z. Confequently, the impropriator's right to tithes remains: And there is no need to fhew how they are due; because they are due of common right. The whole court were very clear, that in the prefent cafe the exemption and modus did not extend to the wafte and common; and

therefore

therefore that the allotted lands, which had been part of that waste and common, having been fubject to tithes before the allotment, muft remain liable to them after it: which they held to differ materially from the cited cafe, where the modus did extend to the wafte and common. And lord Mansfield faid, that the cafe of Lambert and Cumming was determined upon the fame ground as lord Hardwicke's decree went upon in the cafe of Stockwell and Terry; namely, That what was before exempted fhall remain exempted; and what was not before exempt. ed fhall pay tithe. Burrow, Mansf. 1375.

IV. Of modus's, or exemptions from payment of tithes in kind; and therein of cuftom and prefcription.

1. The difference between custom and prefcription is this: Custom is that which gives right to a province, county, hundred, city, or town, and is common to all within the refpective limits; in pleading of which it is alledged, that in fuch a county, or the like, there is and time out of memory hath been fuch a custom used and approved therein. Gib. 674.

Prefeription is that which gives a right to fome particular houfe, farm, or other thing: in pleading of which it is alledged, that all they whofe eftate he hath in fuch land, have time out of mind paid to much yearly, or the like, in full fatisfaction of all tithes arifing on thofe lands. Gibf. 674. (r)

Difference between cuttom and prefcription.

2. Cuftom and prescription are either de non deciman- De non deci• do, or de modo decimandi:

De non decimando is, to be free from the payment of tithes, without any recompence for the fame. Concern

(r) And there is this difference between a prefcriptive and customary modus, that the former is annexed to the lands which it covers, whereas the latter exifts in notion of law, independent of the lands, by force of the custom of the district. In a prefcriptive modus, therefore, the lands must be definite, and not liable to fhift. And therefore a bill to establish a modus for every ancient farm, but not fetting out the abuttals of each, was difmiffed, altho' it was stated that the whole parish confifted of ancient farms. Scott v. Allgood. ▾ Anst. 16. Vid. infra, 8 & 10.

mando.

ing which, the general rule is, that no layman can pres scribe in non decimando; that is, to be difcharged abfo lutely of the payment of tithes, and to pay nothing in lieu thereof; unless he begin his prescription in a religious or ecclefiaftical perfon, and derive a title to it by act of parliament. As in the cafe of Breary and Manby, Nov. 18, 1762. In the exchequer. Mr. Breary, rector of Middleton upon the Woulds of Yorkshire, brought his bill against Mr. Manby one of his parishioners, for great and fmall tithes arifing from the defendant's lands. The defendant by his anfwer infifted, that part of his farm had time out of mind been exempt from payment of tithes of any kind, or any modus or compenfation in lieu thereof; and by his witneffes proved, that no tithe, modus, or compenfation had within the memory of man been paid for fuch part of his farm. The court, at the hearing of the caufe, was clearly of opinion, that the mere non-payment of tithes, tho' for time immemorial, would not be an exemption from payment of them, without fetting out and establishing fuch exemption to have arifen from the lands having been parcel of one of the greater abbies; and therefore decreed the defendant to account for the tithes of that part of his eftate for which he claimed the faid exemption.

But all fpiritual and religious perfons, as bishops, deans, prebendaries, parfons, vicars (as heretofore abbots and priors), may prefcribe generally in non decimando, for they are more favoured than lay perfons; for this is ftill in a spiritual perfon, and fo nothing is taken from the church for fuch fpiritual perfon was capable of a grant of tithes at the common law in pernancy. And hence it is that the parfon or viear of one parish, that hath part of his glebe lying in another parish, may prescribe in non decimando for it; that is, (as hath been said) to be free from the payment of any manner of tithe for the fame. 1 Roll's Abr. 653.

But this general rule, that none but fpiritual perfons or corporations may prefcribe in non decimando, is to be understood with feveral exceptions; as, firft, that the king, as being mixta perfona, may prefcribe de non decimando; by the fame reason that, as fuch, he is capable of tithes. Gibf. 674.

Alfo, the leffee, tenant at will, and copyholder of a fpiritual perfon, tho' a layman, fhall in this respect enjoy the exemption of the leffor, who is fuppofed to reap the benefit of it, in referving fo much the greater rents by

reafon

teafon of fuch exemption. c. 16.

1 Roll's Abr. 653. Deg. p. 2.

In the cafe of Stephenfon and Hill, H. 2 G. 3. An action was brought upon the ftatute of Ed. 6. for the payment of tithes of corn and grain. The defendant pleaded the general iffue, Nil debet: And the cause came on to be tried before Mr. juftice Bathurft at Appleby affizes, Aug. 14, 1760. Upon the trial it appeared, that the lands whereon the corn mentioned in the declaration grew, were and immemorially had been cuftomary lands, parcel of the manor of Morland in the county of Weltmorland, and holden of the lord thereof for the time being: That the faid manor of Morland, and the appropriate rectory of St. Michael's Appleby, were parcel of the poffeffion of the priory of Wetheral in the county of Cumberland, which was one of the larger diffolved monafteries, and was vested in the crown by the ftatute of 31 Hen. 8. and that the prior of the faid priory, at the time of the diffolution, was and had been immemorially feifed of the faid manor with the appurtenances, in his demefne as of fee, int tight of his priory: and also of the appropriate rectory of St. Michael's Appleby, and the tithes there. It alfo appeared, that the faid manor and appropriate rectory being fo vested in the crown, the fame was in due manner grant ed to the dean and chapter of Carlisle in fee; and that they are still feifed thereof in fee, in right of their church; and that the prefent defendant was the cuftomary tenant and occupier of the faid lands whereon the faid carn grew, during the time in the declaration mentioned; and held the fame of the said dean and chapter, as of their faid manor of Morland: That the plaintiff is farmer of the corn and grain tithes growing and arifing within the territories of Bondgate, within the parish of St. Michael's Appleby aforefaid; and the lands where on the corn grew, lie in the territories and parifh aforefaid. It appeared, that no tithes had ever been yielded or paid for or in refpect of the faid lands. It also appeared, that all the other cuftomary tenants of the faid manor pay tithe. It alfo appeared, that this was the only cuftomary tenant belonging to the faid manor, which was within the faid parifh of St. Michael's. Whereupon a verdict was found for the plaintiff, subject to the opinion of the court of king's bench, upon the following queftion; Whether the defendant could in this cafe fet up any prefcription, which would by virtue of the ftatute of 31 Hen. 8. exempt him from the payment of tithe. For the plaintiff, it was argued, that the fact stated, VOL. III. That

Ff

That no tithes have ever been paid, is no exemption of it. felf. It is no prescription of exemption. It is only evidence. It might have arifen from unity of poffeffion, or other caufes. It would be no foundation for a decree in equity, if it had been actually found by a verdict, that they have never been paid. A lord of a manor can only prefcribe as the lands have been holden by his farmers and tenants at will. These are stated to be cuftomary lands, parcel of the manor of Morland, holden of the lord of the manor, not faying, at the will of the lord; therefore they are cuftomary freeholds. Now a lord cannot prefcribe for his customary freeholders; tho' he may prefcribe for his tenants and farmers of copyhold holden at will. Nor can he, in this cafe, prefcribe as by the cuftom of the manor; for the custom of the manor, in general, is ftated to be quite contrary. For the defendant, it was answered, That no tithes having ever been paid for these lands from the 31 Hen. 8. a legal exemption will be prefumed. Spiritual perfons may prescribe in non decimando; and fo may their farmers and tenants, and even their copyholder of inheritance and cuftomary eftates of inheritance may be discharged in the fame way; for the freehold is in the lord. Though many other parts of this eftate have paid tithe, yet there may be a prefcription for a discharge of part: A prefcription may be for a fingle part alone. And this is the only tenement that lies in this particular parish. These customary tenures are not freeholds. The timber, the mines, are in the lord. And the rule is; every thing is in the lord, that custom hath not taken out of him.This caufe ftanding in the paper for further argument; Sir Fletcher Norton, who was for the plaintiff, faid, that the particular cuftoms of the manor (which had been inquired after in the courfe of the former argument) were not yet fent up. By lord Mansfield: What fignify the cuftoms? Clearly, the freehold is in the lord.-Sir Fletcher Norton acknowledged, that he had a great difficulty to get over; it being ftated in the cafe itself, That this was the only customary tenant belonging to the manor which was within this parish.-And by the court; It is a fettled point, that the freehold is in the lord. And lord Mansfield added, that this is rather ftronger than the cafe. of copyholds for copyholders had acquired a permanent eftate in their lands, before thefe cuftomary tenants had done fo. And the court were of opinion, that the lord might prefcribe for this cuftomary tenant in non decimando, and that bere is fufficient evidence of fuch prefcription. Bur. Mansf. 1273.

Allo,