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![handle is hein.slavery/ssactsengr0292 and id is 1 raw text is: ELLIS V. SAUL
and the in-[331]-towners, between residents and non-residents, are liable to the same
objection ; and it is now too late to shake the authority of these cases. Thus much
only I will say upon it, it imposes no real hardship upon the vicar; the occupation of
land is of public notoriety, it must be known to the vicar. The fluctuation is properly
reciprocal, and he gains in one way what he loses in another.
The application of the case of Tr;avis v. Oxlon remains to be considered. In that
case there was a tilt-penny from persons occupying houses with lands, in satisfaction
of the tithe of hay. It was held to be a bad modus. I think it was rightly so held,
for reasons which I shall not now repeat. It is not necessary to go into that case at
large, because there is this clear line of distinction appearing upon the general state-
ment of the two cases ; in Travis v. Oxton the recompence is confined to houses having
shifting land; consequently, if the land was shifted and annexed to another house and
other land, the first house paid none, and the lands or house to which they were
added, paid no more, and the recompence to the vicar was so little fixed, that it might
be reduced to a single tithe-penny.
In this case, let the occupation vary as it may, the recompence remains the same;
it is no part of our consideration whether there is a deficiency in value; that was the
care of the original contractors; we are only to say that the contract is sufficiently
precise and certain, that the parties may have the benefit of it, such as it is, at all
times. The result of our examination of the modus in question is, that in point of
law it is a good and valid modus.
It has been argued that the second modus is inconsistent with this, which they
allege to be in full satisfaction of all tithes of agistment and herbage of barren and
unprofitable cattle, and that it consequently included sheep. The objection is
palpable, but this is not the time for taking it; it goes to prove that both these
moduses cannot in fact exist together without some explanation, but it does not prove
that either is bad in point of law: in fact, if they were, it was before the jury that
the objection was proper to be taken ; they might be, very probably, made consistent
merely by the form of negativing a more general modus, and then indorsing upon the
postea the very same modus, with the exception only of the sheep, which fall under
the particular modus.
[332] The fact of these moduses being admitted in this case, and 'they being so
easily reconciled and both taken together, amounts to a good defence against the
whole demand made by this bill, of tithes in kind; it follows that this bill, so far as
it seeks an account of tithes of agistment, should be dismissed with costs. But the
defendants having insisted upon several moduses set forth in the pleadings, in lieu of
such tithes of agistment, and the fact of such modus having been admitted by the
plaintiff, and the same appearing to the Court to be good and valid moduses, it must
be referred to the Deputy Remembrancer to tak an account upon the foot of each
modus.
ELLIS V. SAUL AND OTHERS.-In the Exchequer, Hil. Term 1790.
Bill by the plaintiff, vicar of Sibsey, in the county of Lincoln, against the occupiers
of land in the parish, for an account of the tithe of agistment of all horses, cows,
oxen, sheep, lambs, and other cattle fed and depastured on lands within the parish of
Sibsey, or the titheable places thereof, in their occupation respectively, or upon any
commons or fens within or adjoining or near to the said parish. The plaintiff,
without relying upon any particular endowment or other instruments, states, by way
of title, that he is, by virtue of certain ancient endowments and otherwise, entitled to
receive all or the greater part of the small tithes, &c. particularly the agistment-tithe.
To this bill the defendants, the occupiers, in their answer, set up three defences
negativing the vicar's claim to the tithe of agistment, or to any compensation in lieu
thereof ; first, they say that by ancient custom, used within the said parish from time
whereof the memory of man is not to the contrary, there were and are due and pay-
able, and ought to be rendered and paid to and accepted by the rector of the said
rectory, yearly and every year upon the 22d of November, commonly called old
Martinmas-day, three ancient moduses or customary payments, namely, an ancient
modus, or customary payment of one penny per acre, in lieu of the tithes of all grass
growing every year upon all the lands within a certain district or part of the said
parish called the moors, lying on the east side of Wardike drain, whether such grass
I AlNST. 331.](ViewImageLocal?handle=hein.slavery/ssactsengr0292&div=1&collection=&method=preview&ext=.png&size=3)