DEACLE, Clerk, v. HANCOCK. a 1824. February 12th. Declarations by rishioners, who were tithe deceased pa payers, and terested, are admissible as evidence of re port of a parochial modus, set up in detion by a rector for not setting fence to an ac out tithes. But the judge has a right to leave such evidence to the jury, with his own im pressions on its weight. DEBT, under the 2d and 3d Ed. 6. c. 13. for not setting out tithes of hay. Plea, nil debet. On the trial of the cause before Best, J. at the summer assizes, 1823, for Somersetshire, admissions were made, of the plaintiff's therefore incommon law title, as rector of the parish—of the defendant's occupation-of his taking away hay without setting out the tithes thereof-and of his then being under no composition. And the following documents were produced in evidence of the plaintiff's claim. A copy of an ecclesiastical survey of the parish in which the land was situate, taken in the 26 of H. 8. containing this declaration of valuation, "In prædial tithes, with the tithes of wool and lambs, 61. 13s. 4d.," and making no mention of modus. A copy of a parliamentary survey, which was silent as to a modus. A note of the glebe, in parchment, from the registry of the diocese, of the date 1635, signed by the rector, the churchwardens, a sidesman, and three other persons, which was also silent as to a modus. An instrument under seal, dated 7th April 1796, purporting to be an agreement between the rector on the one part, and the parishioners on the other; reciting, that differences had arisen as to the annual value of the tithes, and titheable matters in the parish, and containing mutual covenants for a composition in lieu of all, and all manner of tithes for fourteen years, then next ensuing, the parishioners agreeing to pay every year the sums set down opposite their names respectively. This was executed by the plaintiff and the defendant, and by other, though not all the parishioners; and shewed a sum opposite the de- fendant's name of 261. 15s. 4d. In addition to this, an 1824. DEACLE, v. HANCOCK. extensive occupier, a clergyman, proved payments of a composition from 1796 to 1810, at the rate of 2s. 4d. in the pound, according to the valuation of the lands; and from 1810 till a very recent period, according to a new composition then made by another written agreement, in the proportion of 2s. 6d. in the pound, which he considered to be in lieu of all tithes, and independent of any modus, and to be a fair composition without, but too large with, a modus on hay. On cross-examination, he admitted he had heard from deceased parishioners, tithe-payers, one of whom had signed the first agreement, and from the present landlord and his father, that there was a modus of 2d. an acre in the parish in lieu of hay. (This last evidence was at first refused by the learned judge, but afterwards received, on the authority of Harwood v. Sims (a), decided in this Court.) Another witness, in his seventyseventh year, stated that he had paid a composition, as the rest of the parish did, twenty years back. A son of a former rector, an attorney, who had collected for his father, mother, and the succeeding rector, from April 1786 till 1789, proved that he had received for all tithes at the rate of 2s. in the pound; and that no claim of a modus had ever been made on him. The defence set up was, that a modus of 2d. an acre, in lieu of tithe of hay, had immemorially existed over the whole parish; and it was rested on proof of receipts of money payments, and evidence of reputation. Of the former, fifteen were read, signed by three different former incumbents, acknowledging payments from the landlord or an occupier, of various sums for mowing meadow, or mead, at the rate of 2d. an acre, in many instances including fractions of an acre; and covering the same number of years at different intervals between the years 1743 and 1773. In about half of these, agistment tithe (a) 1 Wightwick, 113. was calculated at 8d. an acre. Declarations by deceased parishioners, (at a distance of fifty years in one instance,) as to the existence of the modus, were then spoken to by three witnesses, now or formerly resident in the parish, and acquainted with it for very long periods of time. It was stated by one of these, an occupier and a clergyman, that four shillings in the pound would be a fair composition without a modus-and by another witness, that he understood the modus to be included in the composition of 1796; or it would have been considerably higher. And it was proved by another parishioner, that on his threatening to throw out the tithes, if the payment was not lowered, plaintiff gave him a pound note, and desired him to say nothing about it. But it appeared that all the persons named as those from whom the declarations proceeded, had been tithe payers ;-that two of them had signed the agreement of 1796;-and that three of the witnesses had put their signatures to that instrument. From the statements of counsel upon the argument, it appeared that the learned judge told the jury in substance (there was some disagreement at the bar as to the terms,) that he had received the declarations of deceased parishioners as evidence, in deference to the decision of the Court of Exchequer, contrary to his own opinion. That those përsons, if they were alive, could not be heard, every one of them having been an occupier, and therefore having a most clear interest in establishing the modus contended for. That as to the persons who proved the hearsay, it was their interest also to believe it. But that most of the witnesses, and two out of the three individuals from whom the information had been derived originally, had put their signatures to the agreement of 1796; and what reliance could be placed on the testimony of persons, who in words contradicted, what they had affirmed by their deed and writing? That the effect of this evidence was entirely destroyed, as they did not insist on the modus at the time of making the 1824. DEACLE, V. HANCOCK. 1824. DEACLE, v. composition. That the terms of the composition were decisive of the case. That Mr. Deacle might well think a pound not ill-bestowed in preventing the modus being HANCOCK. brought into question, whatever he might have thought of its validity. The jury found for the plaintiff; and the learned judge's report stated, that he should have been much dissatisfied if they had found otherwise. A rule had been obtained in Michaelmas term, calling on the plaintiff to shew cause why the verdict should not be set aside, and a new trial had, on the grounds of the verdict being against evidence, and of a misdirection by the learned judge, Adam and Williams, C. F., now shewed cause, and contended that the plaintiff's case had been fully made out, by the admission of his common law right, the ecclesiastical survey, the agreement of 1796, and the subsequent one of 1810, with Hancock's signature to the former, and his payment under both down to the year 1817. As to the receipts, they left a large portion of the time between their termini uncovered, and a perfect blank of any evidence adverse to the plaintiff, during a period of twenty-three years, from 1773 to 1796. The collector's evidence shewed the absence of any claim for a modus while he collected; and there could not have been one in existence when the first composition was entered into. The hearsay evidence was all drawn from poisoned sources. The jury cautiously took into their judgment who the persons were that proved it; the case was fairly submitted to them, and ought not to be sent down for trial again. Wilde and Jeremy, contrà, insisted that the case had not been left to the jury, in a manner which rendered their finding satisfactory; and that the learned judge had misdirected the jury as to the weight of the evidence, in three respects; as to the value of the evidence of reputation; as to the effect of the agreement against the defendant by its not making mention of, or reference to, a modus; and as to the inference derivable from the plaintiff's giving the pound note to the tithe payer. Though the evidence of the declarations of the existence of a modus for hay was said to have been received, it was in effect rejected, by the comments with which it was accompanied by the learned judge in his address to the jury. They cited the case of Moseley v. Davies (a), as confirmatory of the decision in Harwood v. Sims, and Nowell v. Hicks (b), to shew that if a customary payment be once established, it is not destroyed even by payment in kind for twenty years. ALEXANDER, C. B. It appears to me that this case ought not to go a second time to a jury. As at present advised, I think that I ought not to concur in the argument for a new trial, unless I thought it quite clear that the verdict was against evidence, or that the case had been sent to the jury with a misdirection, or that justice had not been done by their finding. Now it does not appear to me that I can assent to any one of these propositions. I neither see the verdict to be against the evidence; nor is it clear to me that the cause went to the jury with a distinct misdirection; nor that any injustice has been done by the verdict. The whole of the case on the part of the occupiers, rests on these receipts, and on the evidence of reputation. The evidence on the other side, rests very much on the instrument of agreement which has been produced. I agree in the observation of counsel, that though that instrument may prima facie afford distinct evidence of the right to a modus being suspended, yet that it does not prove it to be destroyed, if there be clear evidence the other way. And I admit that the suspension of a right is not necessarily a 1824. DEACLE, u. HANCOCK. |