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But no tithe is due of hay upon the headlands of ploughed ground, provided that such headlands are not wider than is sufficient to turn the plough and horses upon. 1 Rol. Abr. 616.

It is laid down in an old case, that if a man cut down grass, and while it is in the swathes, carry it away, and give it to his plough cattle, not having sufficient sustenance for them otherwise, no tithe is due thereof. 1 Rol. Abr. 645.

And in a modern case, the court exchequer was of opinion, that no tithe is due of vetches, or of clover, cut green and given to cattle in husbandry. Rumb. 279.

Wood. Tithe of wood is not due in common right, because wood does not renew annually: but it was in antient times paid in many places by custom. 2 Inst. 645.

Exemptions from tithes are of two kinds; either to be wholly exempted from paying any tithes, or from paying tithes iu kind.— The former is called de non decimando: the latter de modo decimandi.

Prescription de non decimando, is to be free from the payment of tithes, without any recompence for the same. Concerning which,the general rule is, that no layman can prescribe in non decimando; that is, to be discharged absolutely of the payment of tithes, and to pay nothing in lieu thereof; unless he begin his prescription in a religious or ecclesiastical person. But all spiritual persons, as bishops, deans, prebendaries, parsons, and vicars, may preseribe generally in non decimando. 1 Rol. Abr, 653.

A modus decimandi, usually called by the name of modus only, is where there is by custom a particular manner of tithing, different from the general laws of taking tithes in kind. This is sometimes a pecuniary compensation, as so much an acre for the tithe of land: sometimes a compensation in work and labour; as that the parson shall have only the twelfth cock of hay, and not the tenth, in consideration of the owner's making it for him: sometimes in lieu of a large quantity, when arrived to great maturity; as a couple of fowls in lieu of tithe eggs, and the like. Any means in short, whereby the general law of tithing is altered, and a new method of taking them is introduced, is called a modus decimandi, or special method of tithing. 2 Black. 29.

In order to make a modus or prescription good, several qualifica tions are requisite. It must be supposed to have had a reasonable commencement, as that at the time of the composition, the modus was the real value of money, it is now become much less. It must be something for the parson's benefit; therefore finding straw for

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the body of the church, the finding a rope for a bell, the paying 58. to the parish clerk, have been adjudged not to be good. But it is a good modus to be discharged, that one hath time out of mind been 1 used to employ the profits, for the repair of the chancel, for the par son hath a benefit by that.

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A modus must be certain: so a prescription to pay a penny or thereabouts, for every acre of land, is void for the uncertainty.➡ And it has been held, that if a precise day of payment be not als ledged, the modus will be ill; but now it is holden, that where an annual modus hath been paid, and no certain day for the payment thereof is limited, the same shall be due and payable, on the last day of the year.

A modus must be antient; and therefore, if it be any thing near the value of the tithe, it will be supposed to be of late commencement, and for that reason will be set aside.

A modus must be durable, for the tithe in kind, being an inheritance certain, the recompence for it, should be as durable, therefore a certain sum, to be paid by the inhabitants of such an house, hath been set aside, because the house may go down and none inhabit it.

And it must be constant and uninterrupted; for if there have been frequent interruptions, no custom or prescription can be obtained. But after it hath been once duly obtained, a disturbance for ten or twenty years shall not destroy it.

When a common is divided and inclosed, a modus shall only extend to such tithes as the common yielded before inclosure, such as the tithes of wool, lambs, or agistment; but not to the tithes of bay and corn, which the common, whilst it was common, did never produce. Bur. 1735.

The parson cannot come himself and set out his tithes, without the consent of the owner; but he may attend and see it set out; yet the owner is not obliged to give him notice when he intends to set it out, unless it be by special custom. Id. 1891.

After it is set out, the care thereof as to wasting or spoiling, rests upon the parson, and not upon the owner of the land; but the parson may spread, dry, and prepare his corn, hay, or the like, in any convenient place upon the ground, till it be sufficiently weathered, and fit to be carried into the barn.

And he may carry his tithes from the ground, either by the common way, or such other way as the owner of the land uses to carry away his nine parts.

If the parson suffer his tithe to stay too long upon the land, the other may distrain the same as doing damage; or he may have an action on the case: but he cannot put in his cattle and destroy the

corn or other tithe, for that would be to make himself judge what shall be deemed a convenient time for taking it away. Lord Raym 189.

Payment of tithes. By 1 Geo. 1. c. 6. all customary payments. due to clergymen, the payment of tithes, &c. is enforced; and the prosecution in this case may be, for any tithes or church-rates, or any customary or other rights, dues, or payments, belonging to any church or chapel, which of right by law and custom, ought to be paid for the stipend or maintenance of any minister or curate, officiating in any church or chapel; provided that the same do not exceed 201

But the time is not limited, within which the same shall become due.

And if any quaker shall refuse, to pay or compound for the same, any parson, vicar, curate, farmer, or proprietor of such tithes, or any churchwarden, chapelwarden, or other person who ought to have, receive, or collect, any such tithes, rates, dues, or payments, may make complaint to any two justices, other than such as is patron of the church or chapel, or interested in the tithes.

The number of days is not limited between the time of refusal, and the complaint; nor is it hereby required, that such complaint shall be in writing. But it will be more conformable to the usual practice in like cases, if it be in writing.

Upon which complaint, the said justices are required to summon in writing under their hands and seals, by reasonable warning, such quaker, against whom such complaint shall be made.

And after appearance, or on default of appearance (the warning or summons being proved before them upon oath), they may proceed to examine on oath the truth of the complaint, and to ascertain and state what is due and payable.

And by order under their hands and seals, they may direct and appoint the payment thereof, so as the sum, ordered as aforesaid, do not exceed 101. And also such costs and charges, as upon the merits of the cause shall appear, not exceeding 10s.

And on refusal to pay, any one of the two next justices, by warrant under his hand and seal, may levy the same by distress and sale, rendering the overplus, the necessary charges of distraining being first deducted and allowed by the said justice; unless it be in the case of appeal, and then no warrant of distress shall be granted, till the appeal shall be determined.

As no time is limited for detaining the distress, nor charges allow⚫ ed for keeping it, it may be sold immediately.

Any person, who shall think himself aggrieved by the judgment

of the two justices, may appeal to the next sessions; where if the judgment shall be affirmed, they shall decree the same by order of sessions, and give costs against the appellant, to be levied by distress and sale, as to them shall seem reasonable.

And no proceeding herein, shall be removed by certiorari, or otherwise, unless the title of such tithes shall be in question.

The withholding of tithes from the parson or vicar, whether the former be a clergyman or lay-appropriator, is among the pecuniary causes cognizable in the ecclesiastical court. But herein a distinction must be taken; for the ecclesiastical courts have no jurisdiction to try the right of tithes, unless between spiritual persons, between spiritual men and lay men, and are only to compel the payment of them, when the right is not disputed. 2 Inst. 364.

TITHING MEN. In the Saxon times. for the Delle conservation of peace, and the more easy administration of justice, every hundred was divided into ten districts or tithings, each tithing consisting of ten friborgs, each friborg of ten families; which tithing-men, or civil deans, were to examine and determine all smaller differences between villages and neighbours, but to refer all greater matters to the superior courts, which had a jurisdiction over the whole hundred. See Decennary.

TITLE, properly is, when a man hath lawful cause of entry into lands, whereof another is seized, for which he can have no action, as title of mortmain, or title to enter for a breach of condition: but legally, this word title includes a right.

TITLE OF ENTRY, is when one seised of land in fee, makes a feoffment thereof, on condition, and the condition is broken; after which the feoffer hath title to enter into the land, and may do so at his pleasure, and by his entry, the freehold shall be said to be in him presently.

TOBACCO, not to be planted in England or Ireland, &c. under the penalty of 12. for every pole, and the forfeiture thereof. TOFT, a messuage, or rather a place where a messuage formerly stood, but is decayed or casually burnt, and not rebuilt.

TOLL, a payment in towns, markets, and fairs, for goods bought

and sold.

TOLL, or PORT TOLL, a prescription to have port toll for all goods coming into a man's port, may be good; and this it is said, without any consideration. 2 Lev. 96.

By 25 Geo. 3. c. 57. all carriages or horses carrying the mail were exempted from toll.

By the 52 Geo. 3. c. 145. reciting that whereas an exemption from

toll has, by several acts for repairing turnpike roads, been granted, in respect of cattle or carriages carrying or drawing any dung, manure, or compost for manuring the land, or fodder for cattle: and that in some of the said acts there is no express provision made for any exemption from the payment of toll for and in respect of any carriage, or the cattle drawing the same, going empty for such lading, or returning empty, having been so laden; and, by reason of such omission, toll has in some cases been lately demanded, and received, in respect of carriages going empty for such lading; and in other cases disputes have arisen concerning the same: and that the excluding from such exemption the case of carriages going empty for such lading, or returning empty having been so laden, must operate to the discouragement of agriculture, and check the due improvement of *, and in many cases defeat the benefit intended by the exemption from tolls of carriages carrying dung, manure, or compost, or fodder for cattle and that by a clause in the 13 Gev. 5. c. 78. It is enacted, that the regulations of weight therein 'before mentioned, should not extend to any waggons, carts, or other carriages, employed only in husbandry, or carrying only manure for land, hay, straw, fodder, or corn unthreshed: and whereas great inconvenience will result to persons employed in husbandry, if the said exemption, in respect of waggons, carts, or other carriages laden with manure, and the cattle drawing the same, should be prevented from taking place, by reason only of any empty basket or baskets, empty sack or sacks, being in or upon the same, if the loading thereof is substantially manure, hay, straw, fodder, or corn unthreshed: and whereas great uncertainty has prevailed, as to the tolls claimed on carriages or horses, liable to separate tolls, when affixed, tied, or secured to some waggon, cart, or other carriage, and much inconvenience has arisen therefrom: it is therefore enacted; that from and after the 25th of September, 1812, in every case in which under any act of parliament for making, widening, and enlarging, repairing or otherwise relating to any turnpike road, there is an exemption from toll or duty in respect of any horse, mule, ass, ox, waggon, cart, or other carriage, carrying or drawing any dung, mould, soil, marl, lime, or compost, of any nature or kind soever, for manuring or improving the land. or hay, straw, or any other fodder for cattle, such exemption shall extend, in respect of every such waggon, &c. and also in respect to the cattle drawing the same, going empty, or loaded only with implements necessary for more convenient carriage, or loading or unloading such lading, or returning empty, or with such implements as aforesaid, having been so laden, notwithstanding the said waggon, &c. shall for the purposes aforesaid go to or return

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