4. Of Setting out Tithes.
A CUSTOM to pay only part of the tithe, without substituting any thing in lieu or the remainder, is bad. But a custom to pay less than the whole tithe may he good, where something in lien of, and as a compensation for the rest, is paid to the Parson. 7 T. Rep. 93.
A modus is a composition time out of mind. 2 Gwill. 591.
A modus is a real composition founded on an agreement. 2 Gwill. 689.
The only difference between a modus and composition is, that the first is, time out of mind, and the last, only a late agreement. Id. 612. 4 Gwill. 1397.
A custom to pay 4d. an acre in lieu of the agistment tithe of barren cattle above a year old, if fed one month in the parish, is good. 3 Gwill. 1048.
A custom to pay 3d a head for sheep agisted between Candlemas and shearing day, and a fleece of every hundred every month for all sheep brought into the parish after the 2d of February, and shorn therein is bad. 3 Gwill. 1048.
To constitute a good MODUS, it seems necessary that 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; and, therefore no modus for hops, turkeys, or other things introduced into England since that time, can be good. Bunb. 307.
A modus of one penny for every sheep, and a halfpenny for every lamb brought into the parish after Candlemas, and sold out before shearing time, is not an agistment, but a wool modus, 4 Gwill. 1462. 1468..
It is a common opinion, that the parishioners are obliged to give the Parson notice of setting out their tithes; 'tis true the canon Iaw obliged them to do. so, but. it is otherwise by the common law, which prevails in this case; for if the parishioner sets out his tithes truly, he is not bound to give notice, either to the Parson himself, or any other general notice at the Church. But notice is sometimes required by special custom, in which case it is good, and must be complied with. And where the tithes are not removed in a reasonable time, notice must be given before an action can be maintained, or cattle turned in. 1 Rol. Abr. 643. pl. 1. 2 Vent. 48. 2 Alk. 603. 2 Bl. Rep. 968.
When custom, renders notice necessary, an hour's notice is sufficient. 4 Gwill. 1438.
Where by the usual mode of husbandry, clover hay is not made into cocks at all, the tithe may be set out in the swathe. 2 Aust. 481.
By Stat. 2. and 3 Ed. 6. All manner of predial tithe shall be set out, divided and paid, justly without guile, in such manner as hath been of right used for 40 years past. And it shall be lawful for any to whom tithes are due to, or his servant, to see his tithes truly set forth, and severed from the nine parts, and the same to take and carry away.
For further particulars on this head, see the several articles in the following alphabetical arrangement.