[when arrived to greater maturity, as a couple of fowls in lieu of tithe eggs, or the like. Any means, in short, whereby the general law of tithing was altered, and a new method of taking tithe was introduced, was called a modus decimandi, and operated in law as a limited or partial exemption. But a modus decimandi, in order to be valid, must have had the following characteristics :—1. It must have been certain and invariable (a). 2. The thing substituted for tithe must have been beneficial to the parson himself (b); thus, a modus to repair the church, in lieu of tithes, was not good, because that was an advantage to the parish only, but to repair the chancel was a good modus, for that was an advantage to the parson. 3. It must have been something different from the thing compounded for (c); e.g., one load of hay in lieu of all tithe hay was no good modus, for no parson would bona fide make a composition to receive less than is due in the same species of tithe. 4. A man could not be discharged from payment of one species of tithe, by paying a modus for another (d); e.g., a modus of one penny for every milch cow would discharge the tithe of milch kine, but not of barren cattle, for tithe is, of common right, due for both, and therefore a modus for one would not be a discharge for the other. 5. The recompense must have been in its nature as durable as the tithes discharged by it (e). And therefore a modus that every inhabitant of a house should pay fourpence a year in lieu of the owner's tithes, was no good modus; for possibly the house may not be inhabited, and then the recompense would be lost. 6. The modus must not have been too large, for in that case it was a rank modus, and the alleged custom establishing it would have been bad.]

(a) Towerson v. Winget (1675),

1 Keb. 602.

(b) 1 Roll. Abr. 649.

(c) Sheppard v. Penrose (1678), 1 Lev. 179.

(d) Grysman v. Lewes (1590), Cro. Eliz. 446; Startupp v. Dodderidge (1706), Salk. 657.

(e) (1728), 2 P. Wms. 462.

Lastly, an exemption from tithes (either total or partial) might have been claimed under the Tithe Act, 1832, on the ground of long usage, that is, such usage as can be shown to have lasted for a certain period of time, even though short of the time of legal memory. For, by that Act, tithe claimed by a lay person (not being a corporation sole), or by a corporation aggregate, may be defeated in general by a usage for thirty years; and when claimed by an ecclesiastical corporation sole, may be defeated in general by a usage for sixty-three years (ƒ).

But the law on the subject of modus, which applies only to tithes payable in kind, has now, though still nominally in force, become practically obsolete. For since the year 1836, a system has been largely carried out for the commutation of tithes into tithe rentcharge under the provisions of the Tithe Commutation Act, 1836, and the various statutes since passed for the amendment of that Act (g). This commutation may be effected in two ways; either, first, by a voluntary parochial agreement entered into by a certain proportion of the parties interested, and confirmed by the board of commissioners to whom this subject has been entrusted (h), or, secondly, by a compulsory award. The basis of the commutation is, in general, the clear average value of the tithes of the parish

(f) Salkeld v. Johnston (1849), 1 Ha. 196; S. C., 1 Mac. & G. 242; Dean of Ely v. Cash (1846), 15 M. & W. 617; Dean of Ely v. Bliss (1852), 2 De G. M. & G.

459.

(g) These are 7 Will. 4 & 1 Vict. (1837) c. 69; 1 & 2 Vict. (1838) c. 64; 2 & 3 Vict. (1839) c. 62; 3 & 4 Vict. (1840) c. 15; 5 & 6 Vict. (1842) c. 54; 9 & 10 Vict. (1846) c. 73; 10 & 11 Vict. (1847) c. 104; 23 & 24 Vict. (1860) c. 93; 41 & 42 Vict. (1878) c. 42;

45 & 46 Vict. (1882) c. 37; 48 & 49 Vict. (1885) c. 32; 49 & 50 Vict. (1886) c. 54; 54 & 55 Vict. (1891) c. 8; 60 & 61 Vict. (1897) c. 23.

(h) Tithe Act, 1836, s. 2. This board has been since consoli. dated with that of the Inclosure and Copyhold Commissioners. These commissioners were afterwards called the Land Commissioners (45 & 46 Vict. (1882) c. 38, s. 30); and are now called the Board of Agriculture (52 & 53 Vict. (1889) c. 30).

-or of the composition payable for the same, where they have been compounded for-for the period of seven years, ending Christmas, 1835 (¿); and the payment of the tithe-commutation is to be half-yearly, and the amount thereof is to fluctuate according to the price of corn. The machinery for ascertaining that price is as follows. In January every year, an advertisement is inserted in the London Gazette, under the authority of the Board of Trade, stating the average price of British wheat, barley, and oats for the seven years ending on the Thursday before the Christmas-day then last preceding (k); and every half-year's payment by each parish is to vary so as always to equal the then value (according to the price as so ascertained) of the number of bushels of wheat, barley, and oats, in equal shares, which could then be purchased (according to the prices advertised in January, 1837) by the sum for which the parish tithes were commuted (1). And the Acts provide for the apportionment of the total parochial rentcharge (under the superintendence of the commissioners) among the parish lands, having regard to their average titheable produce and productive quality. After the apportionment has been confirmed, the lands are absolutely discharged from the payment of tithes, and instead thereof are liable for their proportion of the tithe rentcharge (m); and the Acts provide also facilities for the redemption of the tithe rentcharge, at the price of not less than twenty-five years' purchase (n).

The remedy for the recovery of tithe rentcharge used to be by distress and entry only, and not by any sale of the lands (0); and, apparently, no action of debt lay for the

(i) Act of 1836, amended by the Corn Returns Act, 1882 (45 & 46 Vict. c. 37), s. 10.

(k) Act of 1836, s. 56.

(1) Ibid., s. 67; Act of 1840, s. 20.

(m) Act of 1836, ss. 33, 54, 67; Act of 1860, ss. 15-17.

(n) Act of 1846; Act of 1860, ss. 32-39; Act of 1878, ss. 3, 4; Act of 1885; Act of 1886.

(0) Bailey v. Badham (1885), 30 Ch. D. 84.

arrears of tithe rentcharge (p). And even under the provisions of the Tithe Act, 1891, whereby the tithe rentcharge is for the future made payable by the landowner, and any future contract of the tenant to pay it is made void (9), the remedy is still only against the land, and not against the person; being either a distress, where the owner is in occupation of the land, or a receiver of the rents and profits, where he is not in occupation (r). But the Act of 1891 does not apply to the rentcharge payable under the Extraordinary Tithe Redemption Act, 1886 (s); the recovery of which is still, apparently, governed by the provisions of the Tithe Act, 1836. But, subject to agreements existing at the passing of the Extraordinary Tithe Redemption Act, 1886, the rentcharge thereby created is made payable by the landlord. And as regards extraordinary tithe, the Act of 1886 directs (sect. 1), that it shall not be levied on any newly cultivated hop-grounds, orchards, fruit plantations, or market gardens; and provision is made (by section 3) for the commissioners ascertaining the capital value of the charge on each farm or parcel of land liable thereto. Upon such capital value, when certified by the commissioners, a rentcharge at the rate of four per cent. is made payable (by section 4) in lieu of, and with the same incidence as (t), the extraordinary charge; and such statutory rentcharge is made redeemable on payment by the landowner at the capital value as so certified as aforesaid (sect. 5).

Unless by special provision in the parochial agreement, the Tithe Acts do not extend to Easter offerings, mortuaries, or surplice fees; nor to tithes of fish; nor (in general) either to personal or to mineral tithes (u); nor

to payments in lieu of tithes in London (x); nor to ad valorem tithe payments in any city or town under any custom or private Act; nor to any tithes commuted under any former statute. It follows, therefore, that the former tithe law still retains some importance, and requires to be noticed; at the same time, some branches of that law have for all practical purposes been now superseded, it being provided by the Tithe Commutation Acts, that if any question shall arise as to any composition real, modus, or exemption from tithe, in respect of any of the lands in any parish, such question shall be settled in the manner provided by these statutes. And in the parochial agreement, or award of the commissioners, due allowance is to be made for every modus or exemption that shall be so established (y).

II. As to the estates of the clergy in their benefices.— With regard to these, it is to be remarked, that the clergy differ from ordinary proprietors in several particulars. For all ecclesiastical persons take lands and hereditaments, when granted to them for the use of the benefice in perpetuity, to hold to them and their successors, instead of their heirs (z); but the estate of a rector or vicar, though perpetual as regards his church, is, as regards himself personally, considered for most purposes as an estate for life only, with the fee simple in abeyance (a). Ecclesiastical persons cannot as such be seised in tail, nor can they (if sole) acquire personalty in their corporate capacity (b); and they cannot in general hold lands without a licence in

(x) 37 Hen. 8 (1545), c. 12; 22 & 23 Car. 2 (1671), c. 15; 44 Geo. 3 (1803), c. lxxxix. ; 1 Geo. 4 (1820), c. lix. ; 4 Geo. 4 (1823), c. cxviii. ; 6 Geo. 4 (1825), c. clxxvi. ; 7 Geo. 4 (1826), c. liv. and c. cxv.; 44 & 45 Vict. (1882), excvii.; Payne v. Esdaile (1888), 13 App. Ca. 613.

C.

(y) Act of 1836, ss. 21, 24, 44, 45; Barker v. Tithe Commissioners (1843), 11 M. & W. 320.

(z) 3 Inst. 202; Co. Litt. 300; Wats. C. L. 372.

(a) Co. Litt. 341 d.

(b) Power V. Banks, [1901] 2 Ch. 487, at p. 495.