act, could the plaintiff be permitted to show that such payment could not have had a legal origin by reason of its rankness? If such proof could be made, and it were to be admitted, the whole object of the act as to moduses would be defeated; and if it could not be admitted, then the act has made a modus good which before the act was invalid. In the same case in the Court of Common Pleas (q), Coltman, J., said, that it was clearly the intention of the act to remove some, at least, of the objections which, at the time when the act was passed, were valid objections to the validity of a modus. For instance, all objections founded on the score of rankness, or on the ground that the articles covered by the modus have been introduced within the time of legal memory. It may, perhaps, not necessarily follow that every payment which has been made for the limited number of years, under the name of a modus, must be considered as valid, if it be deficient in those essential requisites which are necessary to constitute a modus; for it is a modus decimandi which the act professes to deal with ; and it may, with some reason, be contended, that the act applies only to such payment as may reasonably be considered as a modus; for a modus decimandi being a payment in lieu of tithes, unless the payment be made. for the benefit of the person to whom the decimæ are due, it may be fairly argued not to be a modus decimandi, and so not within the purview of the statute, or entitled to its protection. He also remarked that some questions of nicety and difficulty should arise in determining whether a particular payment should be considered as showing the existence of a modus decimandi, within the meaning of the statute, is what might be expected. It appears from the 7th section that the act contemplates the possibility that matter of law may be set up in answer to a plea which sets up the actual payment of (q) 2 C. B. 749. What modus not within the act. an alleged modus for the specified number of years. Erle, J., also said that whether every payment made in the name of a modus is to be considered as made in respect of a modus decimandi, within the purview and protection of the statute, may be a question in some cases; and the Court of Exchequer in the same case (r) said that rankness is no longer an objection to a modus. Rankness indeed is not, strictly speaking, an objection in point of law to it, but a mere question of fact(s), a mere rule of evidence (t), and always was, in truth, merely evidence against the presumption of immemorial payment (u). A prescription or claim to a modus in lieu of tithes of matters which have arisen or have been introduced within the time of legal memory, may be sustained under this statute (v). A modus properly so called, which before the statute was open to objection on the grounds just noticed but good in other respects, and since the statute paid for the period prescribed by it, and either for all tithes, or only some particular tithes (r), is a valid modus within the statute (y). So a composition made in modern times and acted upon for the full statutory period and not proved to have been made by agreement in writing (z), and a sum paid annually for tithes, being a certain compensation to the parson, and paid and reserved as of right for that period, although the payment commenced in the year 1653 (a), become valid moduses within the statute. But a prescriptive title to a parcel of tithes, and a prescriptive rent for them, is neither a modus decimandi (?) 2 Ex. 277. (8) 4 You. & Coll. Ex. 329. (v) See Salkeld v. Johnson, 1 (a) See 2 Ex. 288. (y) See Salkeld v. Johnson, 1 M. & G. 267; 2 Ex. 256; 2 Com. B. 749-per Coltman and Erle, JJ., but Tindal, C. J., and Cresswell, J., contra, S. C. (*) See S. C., 2 Ex. 256. 117. nor an exemption or discharge from tithes within this statute (b). The claim to what, in the case of Knight v. Marquis of Waterford, was considered as the parcel of tithes, was not, in terms, to tithes as such, but to a tenth part of all titheable matters, and yet was considered as a claim to the tithes as such. In Pigot v. Hearn (c), however, a similar claim was considered as a temporal right and distinct from tithes as such and a spiritual one; Lord Coke also (d) made the same distinction. The only difference between the principal case and that in Croke, and the one put by Lord Coke, is, that in the principal case the claim was to a tenth of all titheable matters, but in the case in Croke, and that put by Lord Coke, the claim was to a tenth of only some titheable matters; and in the last case was of those from a given quantity of land, and after the tithes of the parson taken, marking more precisely the distinction between tenths and tithes as such. The case of Pigot v. Hearn appears to be the same as Pigot v. Sympson (e), and Lord Coke states (f) the claim in it as being to the tithes as such; and the Court of Exchequer on both sides of the court (g), and also the House of Lords (h)-where, however, the case put by Lord Coke, in his commentary, was not cited-considered the claim in the principal case as one to the tithes as such, and that in Pigot v. Sympson, and Lord Coke's statement of it, the prescription was treated as giving the lord a title, by the special matter, to the tithes as such, as appurtenant to his manor, with a right to sue for them in the spiritual court, and thought that was the true principle of those decisions. In the principal case, also, the (b) Knight v. Marquis of Waterford, 15 M. & W. 419; 4 You. & C. 328; 11 Cl. & F. 653. (c) Cro. El. 599. (d) Co. Litt. 159 a. (e) Cro. El. 768. (f) Bishop of Winchester's case, 2 Rep. 42. (g) 15 M. & W. 419; 4 You. & Coll. 328. (h) 11 Cl. & F. 653. Exemptions from tithes. By composition before prescription was for the lord of the manor and his assigns of the tithes, and the Court of Exchequer and the House of Lords doubted the validity of such a prescription; for, if valid, the right of taking the tithes would be assignable by one layman to another and would make a layman capable of tithes in gross (i). An annual payment in respect of tithes and glebe, although paid for the full statutory period, is not a modus decimandi, nor indeed a discharge of any kind, for there can be no modus for the rent of land (k). Whether on an alienation, before the enabling statute, of glebe and tithes, in exchange for one annual payment to be made in lieu of both glebe and tithes, such payment, without showing how much of it was in respect of the glebe and how much in respect of the tithes, would be a modus in discharge of tithes, might be difficult to maintain (7). The other prescriptions and claims within the 2 & 3 Will. 4, c. 100, are those for exemptions from and discharges of tithes. Before this statute, a prescription or claim de non decimando by the Crown and by the clergy was valid, and also, but only through them, by the laity (m). This statute has given to the laity a substantive and independent right to a species of prescription in non decimando, and enabled them to establish that right by proof of the prescription for a shorter period than would have been required by the common law, if such a prescription had been valid (n). A prescription or claim to be discharged of tithes was, before this statute, generally by composition prodisabling sta- perly so called (o), and sometimes also, since the disen and since the tutes. abling statutes, by agreement for that purpose, which, however, although absolutely void, were often, but erroneously, confirmed by the Court of Chancery (p), but not, it has been said, since 1765; and that, even if they have, they are by the statute in question placed on the same footing as those made and confirmed before that year (q). such statutes made valid. These compositions so made and confirmed since the Those since disabling statutes, and made and acted and not upon, the subject of any action or suit, at the time, or within one year next before the time of the passing of the statute in question, are by it made valid (r); and such a composition not made by agreement in writing, but Compositions acted upon for the full statutory period, would now be, when, either as a modus or a composition, within this statute, and a valid defence to a claim to the render of tithes in kind (s). But if made in writing and not so confirmed, and when although acted upon for such period, would not be a within this valid composition within this statute (t). The construc- act. tion of the section 2 of this statute has become, since the Tithe Commutation Act (u), immaterial for every purpose (x). not valid mere non-pay The mere nonpayment of tithes for the statutory pe- Exemption riod, without showing any ground of discharge or ex- supported by emption recognized by law before the act passed (y), ment of tithes. which the proof of nonpayment given under the statute was to validate, and although the titheable matters. have been introduced within time of legal memory (z), is sufficient to support a claim to exemption of a part |