rankness in a modus is a mere rule of evidence, drawn from the improbability of the fact, and not a rule of law. (t) For, in these cases of prescriptive or customary moduses, it is supposed that an original real composition was anciently made; which being lost by length of time, the immemorial usage is admitted as evidence to show that it once did exist, and that from thence such usage was derived. Now, time of memory hath been [*31 long ago ascertained by the law to commence from the beginning of the reign of Richard the First;(u)(27) and any custom may be destroyed by evidence of non-existence in any part of the long period from that time to the present; (28) wherefore, as this real composition is supposed to have been an equitable contract, or the full value of the tithes, at the time of making it, if the modus set up is so rank and large, as that it beyond dispute exceeds the value of the tithes in the time of Richard the First, this modus is (in point of evidence) felo de se, and destroys itself. (29) For, as it would be destroyed by any direct evidence to prove its non-existence at any time since that era, so also it is destroyed by carrying in itself this internal evidence of a much later original. (30)(31)

A prescription de non decimando is a claim to be entirely discharged of tithes, and to pay no compensation in lieu of them.(32) Thus the king by his prerogative is discharged from all tithes. (v) So a vicar shall pay no tithes to the rector, nor the rector to the vicar, for ecclesia decimas non solvit

(1) Pyke v. Dowling, Hil. 19 Geo. III. C. B. (u) 2 Inst. 238, 239. This rule was adopted when by the statute of Westm. I. (3 Edw. I. c. 39) the reign of Richard I. was made the time of limitation in a writ of right. But, since by the statute 32 Hen. VIII. c. 2 this period (in a writ of right) hath been

very rationally reduced to sixty years, it seems un-
accountable that the date of legal prescription or
memory should still continue to be reckoned from
an era so very antiquated. See Litt. 170. 34 Hen.
VI. 37. 2 Roll. Abr. 269, pl. 16.
(v) Cro. Eliz. 511.

(27) The modern statutes relating to prescription have now, in almost all cases, obviated the necessity of carrying back proof to this remote date.-KERR. And statutes, or acts of parliament, which existed before the beginning of the reign of king Richard I. (1189) and never repealed, are accounted part of the lex non scripta, and are part of the common law; that is, they are deemed to be before the time of memory. Baker on Sales, 21-22 (1887). See also Brown on the Law of Limitations, 426 (1869). Wallace v. Fletcher, 10 Fost. (N. H.) 434 (445).

(28) But though it is essential to the validity of a prescription or custom that it should have existed before the commencement of the reign of Richard I., A. D. 1189, yet proof of a regular usage for twenty years, not explained or contradicted, is that upon which many private and public rights are held, and sufficient for a jury in finding the existence of an immemorial custom or prescription. 2 Bar. & Cres. 54. 2 Saund. 175, a. d. Peake's Evidence, 336. 4 Price R. 198. 2 Price R. 450.-CHITTY. Ackerman v. Shelp, 3 Hals. 125, 131 (N. J. 1825). The time of prescription was shortened by lord Tenterden's Act, 2 and 3 Wm. IV. c. 1o, to twenty, thirty, forty and sixty years for different classes of cases. 9 Chitty's Eng. Stat. Prescription, I et seq.

(29) Bryant v. Foot, 2 K. B. Div. 161, 168 (Eng. 1867).

(30) To constitute a good modus, it should be such as would have been a certain, fair, and reasonable equivalent or composition for the tithes in kind before the year 1189, the commencement of the reign of Richard I.; and therefore no modus for hops, turkeys, or other things eo nomine, introduced into England since that time, can be good.—Bunb. 307.

(31) The question of rankness, or rather modus or no modus, is a question of fact, which courts of equity will send to a jury, unless the grossness of the modus is so obvious as to preclude the necessity of it. 2 Bro. 163. I Bl. R. 420. 2 Bl. R. 1257.-CHRISTIAN. Bedford v. Sambell, M. 16 Geo. III. Scacc. 3 Gwm. 1058. Twells v. Welby, H. 20 Geo. III. Scacc. 3 Gwm. 1192. Mirehouse, 180 to 186.-CHITTY.

(32) Before the statute of 2 & 3 Will. IV. c. 100, a prescription de non decimando by the crown and by the clergy was valid, but only through them, by the laity. Brown on the Law of Limitation, 380 (1869). The mere non-payment of tithes for the statutory period, without showing any ground of discharge or exemption recognized by law before the Tithe Commutation Act, 6 & 7 Will. IV. c. 71, passed, is sufficient to support a claim to exemption of a part of a parish from the payment of all tithes to the rector of the parish. Brown on the Law of Limitations, 381-382 (1869).

ecclesiæ.(w)(33) But these personal privileges (not arising from or being annexed to the land) are personally confined to both the king and the clergy; for their tenant or lessee shall pay tithes, though in their own occupation their lands are not generally tithable. (x) And, generally speaking, it is an established rule, that, in lay hands, modus de non decimando non valet. (y)(34) But spiritual persons or corporations, as monasteries, abbots, bishops, and the like, were always capable of having their lands totally discharged of tithes by various ways;(z) as, 1. By real composition: 2. By the pope's bull of exemption: 3. By unity of possession; as when the rectory of a parish, *32] and lands in the same parish, both belonged to a religious house, those lands were discharged of tithes by this unity of possession: 4. By prescription; having never been liable to tithes, by being always in spiritual hands: 5. By virtue of their order; as the knights-templars, cistercians, and others, whose lands were privileged by the pope with a discharge of tithes. (a) Though upon the dissolution of abbeys by Hen. VIII. most of those exemptions from tithes would have fallen with them, and the lands become tithable again, had they not been supported and upheld by the statute 31 Hen. VIII. c. 13, which enacts, that all persons who should come to the possession of the lands of any abbey then dissolved, should hold them free and discharged of tithes, in as large and ample a manner as the abbeys themselves formerly held them. (35) And from this original have sprung all the lands, which, being in lay hands, do at present claim to be tithe-free: for, if a man can show his lands to have been such abbey-lands, and also immemorially discharged of tithes by any of the means before mentioned, this is now a good prescription, de non decimando.(36) But he must show both these requisites; for abbey-lands, without a special ground of discharge, are not discharged of course; neither will any prescription de non decimando avail in total discharge of tithes, unless it relates to such abbey-lands.(37)

(w) Cro. Eliz. 479, 511. Sav. 3. Moor, 910. (a) Cro. Eliz. 479.

(y) Ibid. 511.

(z) Hob. 309. Cro. Jac. 308.
(a) 2 Rep. 44. Seld. Tith. c. 13, § 2.

(33) [The church does not pay tithes to the church.] This maxim, it was said by Richards, C. B., merely applies to the case of a rector and vicar of the same church and parish where the ecclesia would be paying tithes to itself. In no other case, it was added, can an ecclesiastical person rest his exemption upon this maxim, but must prescribe de non decimando. Warden and Minor Canons of St. Paul's v. The Dean, 4 Pr. 77, 78.—CHITTY. (34) [An exemption from tithing is of no force.] It is not very accurate to speak of a modus de non decimando: a modus, as our author has taught us, is a particular manner of tithing. Where the privilege asserted is that of not paying tithes at all, præscriptio is the more proper word, as the commencement of the paragraph shows Blackstone to have been well aware. It would be idle to notice so trivial an oversight, if some of the books of practice had not copied it, by which a non-professional reader might be misled into supposing that modus and prescription are, in all cases, convertible terms.—CHITTY.

(35) This provision is peculiar to that statute, and therefore all the lands belonging to the lesser monasteries (i. e. such as had not lands of the clear yearly value of 2007.) dissolved by the 27 Hen. VIII. c. 28, are now liable to pay tithes. Com. Dig. Dism. E. 7. -CHRISTIAN.

(36) Mere non-payment of a particular species of tithe, or proof that no tithes in kind have ever been rendered within living memory, does not afford sufficient evidence of the exemption from tithe, (Gwil. 757. I Mad. R. 242. 4 Price, 16;) but the party insisting on the exemption must show the ground of discharge by deducing title from some ecclesiastical person and thus showing the origin of the exemption. 2 Co. 44. Peake on Evid. 470, 471. 4 ed. Bunb. 325, 345. 3 Anst. 762, 945. Mirehouse, 152, 156, 157. And the same rule applies when the claim of exemption is against a lay impropriator, as against an ecclesiastical rector, and against the former no presumption of a grant or conveyance of the tithes, so as to discharge the land, is to be entertained. 3 Anstr. 705; but see Rose v. Calland, 5 Ves. Jr. 186, contra see Mirehouse, 159.-CHITTY.

(37) Tithes have already to a considerable extent, and will soon have entirely, become mere matter of history, through the operation of the tithe commutation acts. The first general statute of this class (for private acts for the same purpose had in particular cases been obtained) was the statute 6 & 7 Wm. IV. c. 71, which has been amended by several

III. Common, or right of common, appears from its very definition to be an incorporeal hereditament: being a profit which a man hath in the land of another; as to feed his beasts, to catch fish, to dig turf, to cut wood, or the like. (b) And hence common is chiefly of four sorts; common of pasture, of piscary, of turbary, and of estovers. (38)

1. Common of pasture is a right of feeding one's beasts on another's land: for in those waste grounds, which are usually called commons, the property of the soil is generally in the lord of the manor; as in common fields it is in the particular tenants. This kind of common is either appendant, appurtenant, because of vicinage, or in gross. (c)(39)

*Common appendant is a right belonging to the owners or occupiers [*33 of arable land, to put commonable beasts upon the lord's waste, and upon the lands of other persons within the same manor. (40) Commonable beasts are either beasts of the plough, or such as manure the ground. This is a matter of most universal right; and it was originally permitted,(d) not

(b) Finch, Law, 157.

(c) Co. Litt. 122.

(d) 2 Inst. 86.

subsequent statutes. The same principle of legislation has also been extended to Ireland by 1 & 2 Vict. c. 109. The chief object of these statutes is to substitute the payment of an annual rent of defined amount for the render of a tenth of the tithable produce of the land or the payment of an arbitrary composition. To effect this, the gross amount of the annual sums to be payable by way of rent-charge in substitution for the tithes is first ascertained. One third of the amount, when ascertained and settled, is to be represented by such a quantity of wheat, another third by such a quantity of barley, and the remaining third by such a quantity of oats, as the rent-charge, if invested in the purchase of these three species of grain, would have purchased at their average prices per bushel during seven years ending Christmas, 1835. The tithe rent-charge is therefore in the nature of a corn-rent, but the payment is made in money, and varies annually, according to the average septennial value of the above three species of grain, on the Thursday preceding Christmas day in every year, as the same is published in the "London Gazette" in the month of January.--KERR.

Tithes in England have been converted into a rent-charge payable in money, but in amount varying according to the average price of corn for the seven preceding years, for the various statutory changes and provisions on this subject, including 2 and 3 Vict. c. 62; 3 and 4 Vict. c. 15; 5 and 6 Vict. c. 54; 9 and 10 Vict. c. 73; 10 and 11 Vict. c. 104; 23 and 24 Vict. c. 93; 28 and 29 Vict. c. 42; 36 and 37 Vict. c. 42; 41 and 42 Vict. c. 42; 49 and 50 Vict. c. 54; 54 and 55 Vict. c. 8. See Chitty's Eng. Stats. vol. 12. Title Tithe Rent-charge. The tithe rent-charge may be destrained for. Tithes have no existence in

the United States.

(38) Brown on the Law of Limitation, 199 (1869).

As to rights of common in general, see Com. Dig. tit. Common; Bac. Abr. tit. Commons; 3 Com. Dig. 92 to 118; Selw. N. P. tit. Common; Saunder's Rep. by Patterson, index, tit. Com. and Commoners. The better cultivation, improvement, and regulation of the common fields, wastes, and commons of pasture is effected by 29 Geo. II. c. 36, S. I. 31 Geo. II. c. 41. 13 Geo. III. c. 81; and the 38 Geo. III. c. 65 contains regulations for preventing the depasturing of forests, commons, and open fields, with sheep or lambs infected with the scab or mange. The very general enclosure of commons has rendered litigation respecting them less frequent than formerly. Such enclosure is usually effected by a separate private act. But to prevent the repetition of clauses usually applicable to all local acts, the general enclosure act, 41 Geo. III. c. 109 (amended by 1 & 2 Geo. IV. c. 23) was passed, which, however, is not to operate against the express provisions of any local act. See sect. 44. 1 Bar. & A. 630.—CHITTY.

A right of common does not impose any obligation upon the owner of the land to maintain a supply of the thing taken, while an easement may contain such an obligation. Such an obligation may be the very essence of the easement. Tiedeman on Real Property, 591 (2 ed. 1892).

By a law of Mass. in 1660, no cottage or dwelling house was to be admitted to the privilege of commonage for wood, timber and herbage except "by consent of the town." See Col. Laws, 196; Thomas v. Marshfield, 10 Pick. 364, 367. 2 Washburn on Real Property, 284 (5 ed. 1887).

(39) Black's Law Dict., title Common.

(40) Willard on Real Estate and Conveyancing, 190 (2 ed. 1885). Common appendant does not now exist in the United States. Tiedeman on Real Property, sect. 593 (2 ed. 1892).

only for the encouragement of agriculture, but for the necessity of the thing. For, when lords of manors granted out parcels of land to tenants, for services either done or to be done, these tenants could not plough or manure the land without beasts; these beasts could not be sustained without pasture: and pasture could not be had but in the lords' wastes, and on the unenclosed fallow grounds of themselves and the other tenants. The law therefore annexed this right of common as inseparably incident to the grant of the lands;(41) and this was the original of common appendant: which obtains in Sweden, and the other northern kingdoms, much in the same manner as in England.(e) Common appurtenant ariseth from no connection of tenure, nor from any absolute necessity: but may be annexed to lands in other lordships, (f) or extend to other beasts, besides such as are generally commonable; as hogs, goats, or the like, which neither plough nor manure the ground. This, not arising from any natural propriety or necessity, like common appendant, is therefore not of general right; but can only be claimed by immemorial usage and prescription, (g) which the law esteems sufficient proof of a special grant or agreement for this purpose. Common because of vicinage, or neighborhood, is where the inhabitants of two townships, which lie contiguous to each other, have usually intercommoned with one another; the beasts of the one straying mutually into the other's fields, without any molestation from either. (42) This is indeed only a permissive right, intended to excuse what in strictness is a trespass in both, and to prevent a multiplicity of suits: and therefore either township may enclose and bar out the other, (43) though they have intercommoned time out of mind. Neither hath any person of *34] one town a right to put his beasts originally *into the other's common:

but if they escape, and stray thither of themselves, the law winks at the trespass. (h) Common in gross, or at large, is such as is neither appendant nor appurtenant to land, but is annexed to a man's person; being granted to him and his heirs by deed; or it may be claimed by prescriptive right, as by a parson of a church, or the like corporation sole. (44) This is a separate

(e) Stiernh. de jure Sueonum, l. 2, c. 6. (ƒ) Cro. Car. 482. 1 Jon. 397.

(g) Co. Litt. 121, 122.
Ibid. 122.

(41) I Pingrey on Real Property, 103 (1895). I Lomax's Digest of the Laws of Real Property, 512 (1839).

(42) In 2 Wooddes. 78, this description as a definition of the right of common par cause de vicinage is objected to as being a descriptive example or illustration rather than a definition. The lords of the contiguous manors may enclose the adjacent waste. 4 Co. 38, C. Co. Litt. 122, a. 2 Mod. 105. But if an open passage be left between the two commons sufficient for a highway, then, as the separation was not complete so as to prevent the cattle from straying from one to the other by means of the highway, the common by vicinage still continues. 13 East, 348. In case of open field lands, the owner of any particular spot may, by custom, exclude the other from right of pasture there by enclosing his own land. 2 Wils. 269.-CHITTY.

(43) Thomas v. Marshfield, 13 Pick. 240, 248 (Mass. 1832).

(44) Levancy and couchancy is not essential. 5 Taunt. 244. A right of common in gross, "as the going of two head of cattle on a common," is a tenement within the statute 13 & 14 Car. II., and a precipe will lie for it; and therefore a person renting such a right of the annual value of Iol. thereby gains a settlement. 7 T. R. 671. 2 Nol. Pl. ch. 23, s. 2. As to cattle-gates, (which are common in the north,) they are not like common of pasture, for they are conveyed by lease and release, and must be devised according to the statute of frauds. The owners of them have a joint possession and a several inheritance. They have an interest in the soil itself, and a cattle-gate is a tenement within the 13 & 14 Car. II. c. 12, for the purpose of gaining a settlement. I T. R. 137. An ejectment will lie for a beast-gate in Suffolk, (signifying land and common for one beast,) (2 Stra. 1804,) and so for a cattle-gate. 2 T. R. 452. 2 Stra. 1804. Rep. T. Hardw. 167. Sel. N. P. Ejectment, 3, note 8.

If A., and all those whose estate he has in the manor of D., have had from time immemorial a fold-course, that is, common of pasture for any number of sheep not exceeding three hundred, in a certain field as appurtenant to the manor, he may grant over to

inheritance, entirely distinct from any landed property, and may be vested in one who has not a foot of ground in the manor. (45)

All these species, of pasturable common, may be and usually are limited as to number and time; but there are also commons without stint, and which last all the year. (46) By the statute of Merton, however, and other subsequent statutes, (i) the lord of the manor may enclose so much of the waste as he pleases for tillage or woodground, provided he leaves common sufficient for such as are entitled thereto. This enclosure, when justifiable, is called in law "approving," an ancient expression signifying the same as "improving."(47) The lord hath the sole interest in the soil; but the interest of the lord and commoner, in the common, are looked upon in law as mutual. They may both bring actions for damage done either against strangers, or each other; the lord for the public injury, and each commoner for his private damage. (k) (48)

(i) 20 Hen. III. c. 4. 29 Geo. II. c. 36, and 31 Geo. II. c. 41.

(j) 2 Inst. 474.
(k) 9 Rep. 113.

another this fold-course, and so make it in gross, because the common is for a certain number, and by the prescription the sheep are to be levant and couchant on the manor. 1 Roll. Abr. 402, pl. 3, Cro. Car. 432. Sir W. Jones, 375.-CHITTY. (45) Tiedeman on Real Property, & 593 (2 ed. 1892).

Common appendant and appurtenant are limited as to the number of cattle either to an express number, or by levancy and couchancy, sometimes termed common without number. Willes, 232. By common without number is not meant common for any number of beasts which the commoner shall think fit to put into the common, but it is limited to his own commonable cattle levant and couchant upon his land, (by which is to be understood as many cattle as the produce of the land of the commoner in the summer and autumn can keep and maintain in the winter.) And, as it is uncertain how many in number these may be, there being in some years more than in others, it is therefore called common without number, as contradistinguished from common limited to a certain number; but still it is a common certain in its nature. 2 Brownl. 101. 1 Vent. 54. 5 T. R. 48. I Bar. & Ald. 706. Rogers v. Benstead, Selw. Ni. Pri. tit. Common. Therefore a plea, prescribing for common appurtenant to land for commonable cattle, without saying levant and couchant, is bad, (1 Saund. 28, b.; id. 343;) for it shall be intended common without number, according to the strict import of the words, without any limitation whatsoever; for there is nothing to limit it when it is not said for cattle levant and couchant. 1 Roll. Abr. 398, pl. 3. Hard. 117, 118. 2 Saund. 346, note 1. 8 Term Rep. 396. From hence it follows that where the common is limited to a certain number it is not necessary to aver that they were levant and couchant, (1 Roll. Abr. 401, pl. 3. Cro. Jac. 27. 2 Mod. 185. I Lord Raym. 726;) because it is no prejudice to the owner of the soil, as the number is ascertained.-CHITTY.

(46) The notion of this species of common is exploded. A right of common without stint cannot exist in law. Bennett v. Reeve, Willes, 232. 8 T. R. 396.—CHITTY.

(47) Any person who is seised in fee of part of a waste may approve, besides the lord of the manor, provided he leaves a sufficiency of common for the tenants of the manor, but not otherwise, without consent of homage. I Stark. 102. 3 T. R. 445.

It seemed to have been generally understood that the lord could not approve, where the commoners had a right of turbary, piscary, of digging sand, or of taking any species of estovers upon the common. 2 T. R. 391. But it is now decided, agreeably to the general principles of the subject, that where the tenants have such rights they will not hinder the lord from enclosing against the common of pasture, if sufficient be left, for this is a right quite distinct from the others; but if by such enclosure the tenants are interrupted in the enjoyment of their rights of turbary, piscary, etc., then the lord cannot justify the approvement in prejudice of these rights. 6 T. R. 741. Willes, 57. The right of the commoners to the pasturage may be subservient to the right of the lord; for if the lord has immemorially built houses or dug clay-pits upon the common without any regard to the extent of the herbage, the immemorial exercise of such act is evidence that the lord reserved that right to himself when he granted the right of pasturage to the commoners. 5 T. R. 411. If a lord of manor plant trees upon a common, a commoner has no right to cut them down. His remedy is only by an action. 6 T. R. 483. -CHRISTIAN.

Lomax's Digest of the Laws of Real Property, vol. 1, p. 514 (1839). 1 Pingrey on Real Property, 107, 108 (1895).

(48) Common appurtenant or appendant can be apportioned. But the land which gives a right of common to the owner shall not be so alienated as to increase the charge