respect to terriers.-57 Geo. 3. Scacc. Arm- (As the lord chief baron seems to have admitted the evidence on the authority of the cases cited; it ought therefore to be observed, that in Halse v. Eyston, and Hebden v.' Freeman, no objection was made to the evidence; but in Harwood v. Sims, on objection taken, it was expressly rejected.)-57 Geo. 3. Scacc. Leonard v. Franklin. iii. 838 at all; exercising, however, a sound discretion in each particular case, whether to do so or not, -55 G. 3. Scacc. & Dom. Proc. Bullen, App. 92. A book from the registry of Lincoln, conv. Michel, Resp. iii. 757 taining (inter alia) what were called copies of 87. The amount of money-payments laid as endowments of certain vicarages, was received farm-moduses in an answer to a vicar's bill, ap- as evidence of an endowment of a vicarage in pearing to be totally inconsistent with the value Northamptonshire, by the lord chief baron of the vicarage as estimated by the ancient do- (after considerable doubt) on the production cuments usually put in evidence; but the pay-of cases wherein it had been received before. ments appearing to have been uniformly and uninterruptedly made, the court would not make any decree without first directing an issue. RICHARDS, C. B. said these ancient documents have never been considered as conclusive, in any case that I have ever met with. And when I see an uniform money-payment proved to have been constantly paid for so many years, I cannot take upon myself to say that 93. Evidence of reputation of certain lands evidence which is anterior shall, on that ac- having been inclosed in pursuance of an agreecount alone, destroy evidence which is posteriorment, not admissible. in point of time.-57 Geo. 3. Scacc. Jee v. Hockley. iii. 816 88. Old terriers, recording that tithe of hay was payable in kind, signed by the rector, church-wardens, overseers, and some of the resident parishioners, held good evidence to rebut the presumption of a farm-modus attempted to be established, by proof of a money-payment having been uniformly rendered within living memory, and the absence of any evidence even of reputation, that the tithe had ever been taken in kind: and that although such terriers were not proved to have been signed by any person interested in the farm.-WOOD, B. dis sentiente. Nor would the Court grant an issue in such a case.-56 Geo. 3. Scacc. Mytton v. Harris. iii. 1391 89. Money payments in lieu of tithes, ascertained by reference to, and regulated by the poor's rate, holden to be bad as moduses; and the vicar's books are evidence to shew that the money payments had been so ascertained and regulated.-57 Geo. 3. Scacc. Walter v. Holman. iii. 830 90. A receipt for payment (by a person sued by a vicar for tithes) of the plaintiff's bill of costs, is evidence of the suit having resulted in favour of a vicar. So is an entry to that effect in a former vicar's books.-57 Geo. 3. Scacc. Parsons v. Bellamy. iii. 832 91. The three legitimate repositories of terriers and vicar's books, to make them evidence, are the church-chest, the registry of the bishop, and the registry of the archdeacon. The books contain historical facts connected with the parish; and what place is so proper for the custody of such a piece of evidence as the chest of the parish church? The propriety of its custody is founded on the same principles as those which regulate such questions with 94. A copy of a lost terrier was rejected as evidence.-57 Geo. 3. Scacc. Leathes v. Newitt. .iii. 841 95. A document produced by a party as evidence in his behalf must be accompanied by proof of the custody whence he derived it, to satisfy the court of its authenticity, or it will not be permitted to be read. 96. Entries in a book in the possession of a defendant were not permitted to be read as evidence to support a modus, on the testimony of a witness, who deposed, that he believed the whole of the writing in the said book to be of the handwriting of W. Stanley, the grandfather of the defendant, (who had been rector of the parish many years before) and "that the deponent was the better enabled to state of whose handwriting he believed the said book to be, from his having compared the writing in the said book with the original will in Doctors' Commons of the said W. Stanley, which appears to be wholly in his own handwriting; and that he believed the said book, and the said will, to be written by one and the same person:" such evidence amounting merely to inference, and not actually proving that either the book or the will were written by W. Stanley.-58 Geo. 3. Randolph v. Gordon. iii. 877 97. Payment of 8d. an acre as a modus for hay, being proved by parol testimony and receipts to have been made as far back as living memory would extend, the court held, that the ecclesiastical survey, in which the tithe-hay was valued at 3s.; a terrier, stating one moiety of the tithe of corn and all other tithes, great and small, to belong to the vicar; other terriers, stating the vicar to be entitled to the tithe of hay, or a modus of 8d. an acre; and an entry in the parish register of a memorandum that the vicar had, in a certain year, taken the tithe in kind of some of the occupiers, and had agreed with the rest for the compositions exceeding that sum; did not rebut the evidence in support of the modus; and therefore directed an issue to try it. 98. Much reliance cannot be placed on the ecclesiastical survey or the ancient documents of a similar description, usually produced in tithe causes. 99. Parol evidence as far back as living memory could reach of the uninterrupted payment of a sum of 5s. by the occupiers of land in a certain district, in lieu of the tithe of hay throughout such district, was holden to be rebutted by terriers stating the 5s. to be payable in lieu of hay grown in crofts only, and an account of the tithe was decreed. 100. Entries in a book called a parish register, produced from an iron chest kept in the vicarage house, were admitted as evidence on the part of the vicar; the court holding, that the book came out of the proper custody, and that it was a public book belonging to the parish. -58 Geo. 3. Scacc. Drake v. Smith. iii. 888 101. An answer, by a former rector, to a bill filed to establish a modus, of a certain measure of meal, as to one farm, admitting that the parish is exempt, in consideration of a commutation for meal, is not only admissible but strong evidence to prove a district modus.— 58 Geo. 3. Scacc. De Whelpdale v. Milburn. iii. 894 102. Where a bill has been amended, the amended bill is the only one upon record an original bill in a former suit cannot therefore be read as evidence to prove what a plaintiff considered his right to be at the time of filing it.-58 Geo. 3. Scacc. Hales v. Pomfret. iii. 915 103. A modus, or a sum of money, laid as payable in lieu of tithe of hay and all small tithes, is not supported by proof of the payment for hay and non-payment of hay or any small tithes, either in kind, or sub modo; and an account was decreed. 104. Payments laid as moduses being proved to have been always paid within memory, though called by the witnesses compositions, and not opposed by evidence of their origin, held to be sufficiently proved to establish them on a defence of moduses.-59 Geo. 3. Scacc. Driffield v. Orrell. iii. 934 105. The court will not, on a bill for tithes, praying a discovery of documentary evidence, order a tithe-book of a former rector, admitted to have been in the possession of the defendant's attorney, to be produced, unless it clearly appear from admissions in the answer that it would assist the plaintiff's case; and a motion for such purpose was therefore refused, but without costs, there being some colour for the application.-59 Geo. 3. Scacc. Bligh v. Beniii. 956 son. 106. Reputation is admissible in cases of private right, where a class or district of persons is concerned, and is evidence as to a parochial modus, but not as to a farm modus, or to support a prescriptive right, except as to a right of way. Proof of a fixed payment for a farm during a long period, even without mention of a modus, is evidence of a modus.-59 Geo. 3. Canc. White v. Lisle. iii. 969 107. In a suit in the spiritual court for (inter alia) wood; on reading the evidence, an objection was taken to one of the witnesses, on the ground that he was a farmer, occupying land in the parish, who might be interested in the result of this suit. The court held, that, although he had no direct interest, he might be ultimately interested in the event of the suit and the party had not waved the objection merely by administering interrogatories to him, as it did not appear that he was a farmer in the parish; but if so, non constat, that he was a farmer of wood-land. It is a matter of ordinary prudence to administer the interrogatories, and the objection is taken the first time they are offered to be read. The court is bound to consider the witness as incompetent by law; therefore, rejects his evidence.-59 Geo, 3. Consist. Court. Lagden v. Flack. iii. 973 108. A rector's books were not allowed to be proved viva voce, and leave to put off the' cause in order to prove them by interrogatories was refused. 109. Terriers alone, without some evidence of payment, are not sufficient to prove a modus. -59 Geo. 3. Canc. Lake v. Skinner. iii. 976 110. Evidence of a rector's handwriting to receipts by comparison with his signature in the register's book, the entries in which it was his duty to sign, held sufficient. 111. Testimony of occupiers is wholly inadmissible for any purpose. 112. The personal answer of a defendant to a libel in the ecclesiastical court, preserved among the records of the register, is admissible evidence in a suit for tithes in this court by a party claiming under the same title as the person whose answer it was.-1 Geo. 4. Scacc. Taylor v. Cook. iii. 1005 113. A money payment of five shillings yearly, at Lammas, by every occupier of lands or tenements within a district, set up as a modus, in lieu of all tithe hay within the district, although proved prima facie in point of fact: held to be disproved as a modus for all the hay in the whole township, by the evidence of terriers, stating, that "in (the district) only five shillings per year for all the hay in their (the occupiers) crofts" was payable, the parol testimony of the money-payment, and the evidence of terriers, being quite consistent with each other, there being nothing contradictory in the terriers so limiting and specifying the object and consi- | dence.-1 & 2 G. 4. Scacc. Stuart v. Greenderation of the sum proved to be paid generally all. iii. 1040 throughout the parish in lieu of hay, to such 122. Parol evidence of a payment for hay and hay as was grown in crofts.-1 G. 4. Scacc. agistment is rebutted by evidence of a modus Drake v. Smith, Bart. iii. 1012 having been established at law and in equity for 114. A book in the handwriting of A. B. hay.-1 & 2 G. 4. Scacc. Williamson v. purporting to contain an account of tithes col- Hutton. lected by him seventy years ago, cannot be received in evidence, without proof that A. B. was collector of tithes at that time. 115. In a suit for tithes by the lessee of an ecclesiastical corporation aggregate, to whom the rectory belonged, ancient documents in their possession, purporting to be accounts furnished by some of their members employed to collect the tithes, and appearing to be approved and settled, are admissible in evidence. The statutes of the corporation enjoining the appointment of collectors, together with the internal evidence of the documents, and their coming out of the proper custody, held sufficient proof that the accounting parties were really collectors. 116. As to the principle on which entries in a rector's book are admitted as evidence for his successors.-Qu, - 117. Entries of tithes received, in the books of an ecclesiastical corporation aggregate entitled to a rectory, are evidence for their succes sors. 118. Whether entries in the books of a lay impropriator in fee, of tithes received, are evidence for those claiming under him.—Qu. 119. An entry by a deceased person may be evidence, though he could not in his lifetime have been examined to the fact.-1 & 2 G. 4. Canc. Short v. Lee.. iii. 1013 120. On an issue directed to try a modus a lessee by parol of the vicar, disputing the existence of the modus, may be examined on the part of the vicar, if he has previously released the vicar. A new trial granted on the ground that the evidence of such a witness was improperly rejected.1 & 2 G. 4. Scacc. Robinson v. Williamson, iii. 1038 121. The omission in the earliest two or three of a series of old terriers, of any notice of money payments set up as moduses, does not destroy the evidence of the existence of the moduses arising, from the subsequent terriers which do notice them; nor even a variance in the amount of one of the sums, and a qualification of the payment of it occurring in one of them. Where the payments relied on are supported by the testimony of witnesses, who prove that such payments have been in fact made accordingly and moduses of 4d. for a colt, 1d. for a barren cow agisted, and 1§d. for cow and calf or calving cow, were therefore sent to a trial at law on such conflicting evi VOL. III. iii. 1049 123. A modus set up for hay, hemp, and flax, is so far proved by receipts for a money payment made for hay, hemp, and flax, for fortyfive years back, although earlier receipts describe it as payable for hay only, which would have otherwise been conclusive against the occupiers, as that the payment must be made the subject-matter of an issue. The payment being called a "hay rent" in the receipts, is no objection to them, as evidence of the existence of a modus.-1 & 2 G. 7. Scacc. Manby v. Lodge. iii. 1052 124. On a question of parochial modus, referred to a trial at law, testimony, offered as evidence of reputation, in proof of the custom on which the right to the advantage of the modus decimandi was founded, "that the money payments constituting the alleged modus had been uniformly made, beyond living memory, and that the witness had heard old persons, who at that time occupied lands in the parish, and were long since dead, say that it had always been the custom to make such payments," was held to be admissible evidence of reputation on that subject, against an objection taken of interest in making such a declaration on the part of the deceased persons on whose information the evidence was founded.-3 G 4. Scacc. Moseley v. Davies. iii. 1082 125. Declarations by deceased parishioners, who were tithe-payers, and therefore interested, are admissible as evidence of reputation in support of a parochial modus, set up in defence to an action by a rector for not setting out tithes. But the judge has a right to leave such evidence to the jury, with his own impressions on its weight.-4 & 5 G. 4. Scacc. Deacle v. Hancock. iii. 1126 126. On issues to try moduses, owners of lands in the parish are not competent witnesses ; and the depositions of such witnesses as are dead cannot be read, if it is shewn that they were interested, though no such thing appears in the deposition, and though their evidence was read in equity. 127. Semb. that the receipts of a vicar's lessee are admissible evidence of a modus. 128. On the trial of a modus, the receipts of a lessee of a deceased vicar are evidence; and if a witness proves that her father and brother were tenants of the tithes for above 40 years, that is sufficient to let in their receipts, without proving a lease to them, BB 129. If at the trial, an interested witness, who produces old documents, be allowed to give evidence of the place from which he brought them, thereby tending to establish their authenticity, though he ought not to have been permitted to give such evidence, yet a court of equity will not send the case to a new trial, if there is evidence enough to support the verdict, exclusive of the documents produced by the witness. 5 Geo. 4. N. P. Jones v. Carrington. iii. 1131 130. Evidence of reputation of the exemption of the district from tithes, read de bene esse.-5 Geo. 4. Scacc. Donnison v. Elsley. iii. 1393 131. An original ancient book, containing, amongst other matters concerning a particular see, the entry of the endowment of a vicarage by a former bishop, to whom the rectory was granted by the crown, with license to appropriate, and coming from the registry of the diocese, is evidence of the endowment. But regularly, a copy of the entry is not admissible. 132. Depositions of a defendant, who set up a farm modus, allowed to be read de bene esse, in favour of co-defendants, who set up other farm moduses. 133. In proving a farm modus a defendant is bound, first, to prove distinctly that the farm was an ancient farm, and then to shew the particular payment in respect of that ancient farm. 2. Extra parochial tithes granted by the king in the forest of Dean to the bishop of Llandaff, and a petition for tithes of his lands newly assarted-33 Edw. 1. Ꭵ. 6 3. A commission directed to inquire concerning the boundaries of the extra parochial lands in the forest of Dean.-35 Edw. 1. i. 6 r 4. Relief ordered on the petition of the bishop of Carlisle for redress against the prior and canons of Carlisle, who under colour of a grant by the king of the tithes of assarts, and of other lands to be assarted, within the forest of Ingelwood, which were extra parochial, ried away tithes of wool and lamb and agistment within the forest and parish of the bishop. ii. 11524 Edw. 3. i. 13 134. There being but one witness in support of a farm modus is no objection to an issue in point of law, provided such witness be uncontradicted.-5 Geo. 4. Scacc. Wolley v. Brownhill. 135. The title of a portioner must be either proved by shewing the grant under which he claims, or if it have been lost, by that species of evidence which will enable the court to presume that such a grant once existed.-5 Geo. 4. Scacc. Wolley v. Platt. iii. 1167 136. Where a payment in lieu of tithes of the ancient demesne lands of a manor was proved to have been paid to and accepted by the rector for the time being for upwards of a century; and from the recitals in a lease in the reign of Cha. 1. there was strong ground to presume that it existed before that period; and there was no evidence of tithes in kind having ever been rendered; yet, it being manifest from certain ordinances and other ancient documents produced and proved in the cause, that the payment had its origin subsequently to the time of legal memory, the court, notwithstanding the antiquity of the payment, decreed an account of the tithes, but ut without costs.-6 Geo. 4. Scacc. Fisher v. Lord Graves. iii. 1180 137. A modus alleged in an answer to be ?། car 5. According to HERLE, C. J. the bishop of the place shall have extra parochial tithes; and a man cannot grant them to whom he will.7 Edw. 3. i. 14. 6. By THORPE, it used to be law that the king had and used to have tithes in extra parochial places, (and not the bishop of the place) to grant to whom he pleased; but the archbishop of Canterbury has petitioned parliament to have such tithes, which petition remains to be tried.-22 Edw. 3. i. 17 7. HANKFORD said that a parson might have tithes by prescription in an extra parochial place.-14 Hen. 4. i. 29 8. Lands must be parcel of a parish by prescription or by act of parliament, and extra parochial tithes are due to the king.-24 Car. B. R. Banister v. Wright. i. 404 9. Tithes decreed to the king for the cattle agisted and depastured on the extra parochial lands lying with the forest of Exmore, though in his own possession.-1657. Scacc. Mills v. Edbroke. i. 425 10. Tithes of extra parochial lands in th Bedford Level decreed to the grantees of the crown.-13 Ann. Scacc. Shaw v. Topping. i. 707 11. The lands called Redmore near the parish of Lakenheath, in the county of Suffolk, and Haltree are within the limits of Bedford Level, and liable to pay tithes to the grantees of the crown of extra-parochial tithes.-1 Geo. Scacc. Shaw, Bart. v. Styles. i. 710 12. The tithes of all extra-parochial lands belong jure corona to the king, and the title of the crown is not confined to such extra-parochial lands only, as were forest or parts of forest -land. 60 Geo. 3. Scacc. Attorney General v. "Lord Eardley. iii. 986 d FISH.-See DISCHARGE. i. 508 4. Where the parson sued for tithe fish in the spiritual court, according to a certain Pcustom of tithing, (which he might do) viz. to take the half of the tenth part of all fish caught and brought into Yarmouth, but the defendant alleged another custom, viz. to pay the tenth part after satisfying the owner of the vessel for the charges of the voyages in fish, for which no tithe was to be paid; held, that as different customs were alleged, and the common law and spiritual law differed in the point of prescription, (which is there good in ten years) prohibition should go.-14 Jac. B. R. Gosling v. Harding. hutab out 11.258 5. Tithe of fish is due merely by custom, which if disputed shall be decided by the common law courts, for though customary payments for tithes due de jure, may be sued for in the spiritual court yet if the tithe be not due de jure, but by custom only, as of fish, rabbits, ore, limekilns, &c. the custom shall be tried at common law, after which the spiritual court may proceed upon it.-3 Car. C.B. Anon. i. 357 6. Tithe of fish at Yarmouth, &c. is by custom.-4 Car. C. B. Stile's case. i. 361 7. Tithes may be payable by custom for sea fish. 8 Car. B. R. Anon. i. 376 8. Nothing feræ naturæ is titheable by the common law, as rabbits, partridges or fish in a pond.-9 Car. B. R. Anon. i. 382 10. Fish in rivers not titheable, if not by custom.-15 Car. B. R. Anon, pa *i. 398 1. This act, or any thing therein contained, shall not extend to any parish which stands 9. Tithes are not payable for fish taken in upon, and toward the sea-coasts, the commodi- rivers, but by custom, per RICHARDSON, C. J. ties and occupying whereof consists chiefly in fish,-9 Car. B. R. Dawes v. Huddlestone. i. 332 and have by reason thereof used to satisfy their tithes by fish; but that all and such every rish and parishes shall hereafter pay their tithes according to the laudable customs, as they have heretofore of ancient time within these forty years used and accustomed.-2 & 3 Edw. 6. c. 13. s. 11, iv. 88. 1 2. Prohibition to a libel for the tithes of pilchards taken in the sea, upon a suggestion of a custom that the owner of the fishing boat has one moiety of the fish, and the fisherman the other moiety, and that the owner had used to pay the tenth of his moiety in discharge of all, &c, allowed.-1 Jac. C. B. Holland v. Heale. i: 156 3, No personal tithes shall be paid out of the clear gains of the party; as if the owner of a ship lends it to mariners to go to Ireland for fish, for a certain quantity of fish to be paid to him upon their return, no tithes upon their return shall be paid by the mariner to the parson out of those fish which the owner shall have for 1 the hire of his ship, because, this is a personal 11. No tithes shall be paid in kind, without a custom, for fish taken in the high sea out of any parish: JONES, J. said that upon an appeal to the delegates out of Ireland in the Lord Desmond's case, it was agreed, that for such fish so taken only personal tithes are due deductis expensis.-14 Car. B. R. Long v. Dircell. 1 Ro. Abr. i. 637 12. No tithes shall be paid in kind de jure, without a custom, for fish taken in a common river which is not inclosed, as in a stew inclosed, because they are fera natura, though they be taken by one who has a several fishery there, and though the place be within the parish of the parson who claims them, for this is a personal tithe, which ought to be paid deductis expensis.—1 Ro. Abr. 636. 13. A custom to pay less than a tenth part for tithes of fish, which are not due without custom, may be good, but to less for things of which tithes are due of common right, is not good without other matter.-18 Car. 2. B. R. Penrose v. Shepherd. i. 448 14. The fishermen of the parish of Paull, otherwise Paulyn, in Cornwall, ought to pay tithes of all sea fish taken by them, except such |