1826.

MARTINEZ

V.

COOPER.

I cannot help thinking, however, that a decree of this kind, made on such a bill, is wholly wrong, even though made with the consent of all parties. Has the Defendant a right to any more costs than such as would have been due to him, if this had been originally a bill for redemption?

"His Lordship doth order, that the said decree be affirmed, and that the sum of 10., deposited with the register on setting down the appeal, be paid to the Defendant, in part of the costs hereinafter directed; and it is ordered that the Master do tax the Defendant's costs of this appeal, and deduct the sum of 107. from the said costs when taxed; and it is ordered, that the Plaintiffs do pay to the Defendant the remainder of such costs, after such deduction."

Reg. lib. 1825. B. 1989.

GOODENOUGH v. POWELL.

1826.

June 27-29.

HE Plaintiff was rector of the parish of Yate, in The defendants THE Gloucestershire, and filed his bill against several to a bill by a occupiers of lands within the parish for an account of tithes of hay, tithes of hay.

The Defendants, by their answer, admitted, that the Plaintiff was rector of the parish, and that they occupied lands within it, from which they had carried away con

rector for

set up a modus of two

pence for

each load of hay of the weight of one Easter by the ton, payable at several occupiers, in lieu of

Easter in the

siderable quantities of hay, without setting out the tithes thereof; but they alleged, that, for various kinds of tithes of hay tithes growing and arising within that parish, certain grown from moduses, or ancient customary payments, were payable, year preceding inclusive; and and particularly that such modus was payable for the they by their tithe of such hay; "for these Defendants say, that the answer further stated, that sum of 2d. for each load of hay, of the weight of one the amount of ton, made, cut, and grown upon all lands in the said the modus parish of Yate, (except on certain lands called Hanshawes, and the tithing within Wapley and Codrington, and Yate Court Farm, within the said parish, and for such of the lands as are situate in North Mead, Hall Mead, and

payable to the rector under such custom,

had been usu

ally ascertained by a person, on behalf of

the rector in

specting the ricks of hay made within the parish in each year, and forming an esti mate of the number of loads of one ton weight contained in each rick, upon which estimate the whole of the annual modus payable to the rector was calculated, but that this mode of estimating the weight formed no part of the custom; it also appeared, that, in a suit instituted in the Exchequer by the same rector against some occupiers for the tithe of hay in the same parish, an issue had been directed, and, the jury having found, that two-pence for every load of hay of the weight of one ton had been immemorially paid to the rector at Easter in each year, by the several occupiers of lands, in lieu of the tithes of hay, the rector's bill had been dismissed with costs: Held,

That the alleged modus was bad in law, and that an account ought to be directed against the Defendants, without directing an issue as to the validity of the modus. Quære. Whether the Court ought to direct an issue to try the validity of a modus, where the modus is stated, in the answer, in such a form, that it would not be good in law, if proved exactly as it is alleged, but the Court has reason to believe, that, on a trial, those circumstances, which would be requisite to give it validity, may probably be established in evidence.

Duck

1826.

GOODENOUGH

บ.

POWELL.

Duck Mead as were not occupied by the tenants of Thomas Burnell, gentleman, on the last day of November 1584), hath, from time whereof the memory of man is not to the contrary, been paid or payable to the rector of the said parish of Yate for the time being, at Easter in each year, by the several occupiers of the said lands respectively, in lieu of the tithes of hay growing, renewing, and increasing upon the said lands from the time of Easter in the year preceding inclusive." In a subsequent part of the answer the mode of ascertaining the quantity of hay was stated in the following manner: — "And these Defendants say, that the amount of the modus payable to the rector for the time being of the said parish in each and every year for the tithe of hay, under such modus or custom as before mentioned, hath been usually ascertained in the said parish in the following manner; (that is to say,) that some person, acting on behalf of the rector for the time being, hath, from year to year, inspected the ricks of hay made in each year within those parts of the said parish subject to the said modus, and that such person hath formed an estimate of the number of loads of hay, of one ton weight, contained in each rick; and, upon that estimate, the whole amount of the annual modus payable to the rector of the said parish, in respect of such hay, hath been calculated; and that no dispute as to the number of loads of hay, of one ton weight, contained in such ricks as aforesaid, hath ever, to the remembrance of them, or either of them, occurred within the said parish; but such modes of ascertaining the weight form no part of the said custom, but have been adopted for mutual accommodation; and they believe that, in consequence of such usage of ascertaining the amount of the said modus as last aforesaid, the occupiers of land within the said parish have not, of late years, or within their knowledge or remembrance, actually weighed their hay at the time of cutting, or at

any

any other fixed time, or in any other manner ascertained the precise and exact number of tons thereof, but have computed the same as aforesaid."

It appeared further from the answer, that in 1803 the Plaintiff had filed a bill in the Court of Exchequer, praying an account of what was due to him for tithes of hay from certain other occupiers. That suit was brought to a hearing; and, on the 1st of July 1811, a decree was made directing the following issue: "Whether the sum of 2d. for each load of hay, of the weight of one ton, made, cut, or grown upon all or any of the lands within the said parish of Yate, (except for Hanshawes and the tithing within Wapley and Codrington, and for such of the lands as are situated in North Mead, Hall Mead, and Duck Mead), hath not, from time out of mind, been payable and paid to the rector of the said parish for the time being, at Easter in every year, by the several occupiers of the said lands respectively, for and in lieu of the tithe hay growing, renewing, or increasing in or upon the said lands." On the trial, the jury found in favour of the Plaintiffs in the issue; and the cause coming on for further directions, the bill was, on the 21st of May 1813, dismissed with costs.

Afterwards, the present suit was instituted.

The cause being at issue, a considerable number of witnesses were examined in support of the alleged modus. The general tenor of their evidence was, that tithes had never been rendered or set out in respect of hay or grass grown within the parish; that the occupiers, as a compensation for such hay or grass, had always paid 2d. for every load; that the load was understood in the parish to mean a waggon-load, and was computed at a ton weight; that the common and received esti

1826.

GOODENOUGH

บ.

POWELL.

1826.

GOODENOUGH

V. POWELL.

mation of a load of hay in this parish did not vary from the common and received estimation in the neighbouring places; that the number of loads was computed after the hay was put into ricks; and that the computation was made some time between Michaelmas and Christmas, but on no particular day. According to several of the witnesses, this computation was made by the occupiers, and they afterwards took the account to the parson or his agent; but sometimes the parson sent a servant to accompany the occupiers in making the calculation: according to others, the practice was for the agent of the parson, accompanied by the respective occupiers, to view the racks, and to estimate from that view the quantity of hay contained in them. They ad'mitted, on their cross-examination, that they had never known hay actually weighed, for the purpose of ascertaining the amount of compensation due to the rector; and that the weight of a given bulk of hay would vary, according to the species of the grass from which it was made, according to the stage of growth in which it was cut, and according to the period of time which elapsed between the mowing and the weighing.

manner:

The cause came to a hearing on the 21st of January 1820, when the Vice-Chancellor directed a special case for the opinion of the Court of King's Bench, upon the question, whether the alleged modus was good in law? In that special case the modus was stated in the following "That the sum of 2d. for each load of hay, of the weight of one ton, made, cut, or grown upon all lands in the parish of Yate, other than and except certain lands, &c., had, from time whereof the memory of man is not to the contrary, been paid or payable to the rector of the parish of Yate for the time being at Easter in each year, by the several occupiers of such lands, from the time of Easter in the year preceding in

clusive;