A modus must be certain ; so a prescrip tion to pay a penny, or thereabouts, for every acre a land, is void for the uncer tainty. And it has been held, that if a pre cise day of payment be not alleged, the modus will be ill ; but now it is holden, that where an annual modus bath been paid, and no certain day for the payment thereof is limited, the same shall be due and payable on the last day of the year.
A mocks must be ancient ; and there fore, if it be any thing near the value of the tithe, it will be supposed to be of late commencement, and for that reason will be set aside.
A modus must be durable; for the tithe in kind, being an inheritance certain, the recompense for it should be as durable; therefore a certain sum, to be paid by the inhabitants of such an house, bath been set aside, because the house may go down, and none inhabit it. And it must be con stant and uninterrupted; for if there have been frequent interruptions, no custom or prescription can be obtained. But after it hath been once duly obtained, a distur bance for ten or twenty years shall not destroy it When a common is divided and inclos ed, a modus shall only extend to such tithes as the common yielded before inclosure, such as the tithes of wool, lambs, or agist ment : but not to the tithes of hay and corn, which the common, whilst it was common, did never produce.
' The parson cannot come himself and Set out his tithes without the consent of the owner ; but he may attend and see them set out; yet the owner is not obliged to give him notice when he intends to set it out, unless it be by special custom. Af ter it is set out, the care thereof, as to wasting or spoiling, rests upon the parson, and not upon the owner of the land; but the parson may spread, dry, and prepare his corn, hay, or the like, in any conveni ent place upon the ground, till it be suf ficiently weathered, and fit to be carried into the barn. And he may carry his tithes from the ground either by the common way, or such other way as the owner of the land uses to carry away his nine parts. If the parson suffer his tithes to stay too long upon the land, the other may dis train the same as doing damage ; or he may have an action on the case: but he cannot put in his cattle and destroy the corn, or other tithe; for that would be to make himself judge what shall be deem ed a convenient time for taking it away.
By 1 Geo. I. c. 6. all customary pay ments due to clergymen, the payment of tithes, &c. is enforced ; and the prosecu tion in this case may be, for any tithes or church-rates, or any customary or other rights, dues, or payments, -belonging to any church or chapel, which of right, by law, and custom, ought to be paid for the stipend or maintenance of any minister or curate, officiating in any church or cha pel, provided that the same do not exceed twenty pounds.
But the time is not limited within which the same shall become due, and if any quaker shall refuse to pay or compound for the same, any parson, vicar, curate, farmer, or proprietor of such tithes, or any church-warden, chapel.warden, or other person, who ought to have, receive, or collect, any such tithes, rates, dues, or payments, may make complaint to any two justices, other than such as is patron of the church, or chapel, or interested in the tithes.
The number of days is not limited be. tween the time of refusal, and the com plaint, nor is it hereby required that such complaint shall be in writing. But it will be more conformable to the usual prac tice in like cases, if it be in writing.. Upon which complaint, the said justices are required to summon in writing, under their hands and seals, by reasona ble warning, such quaker, against whom such complaint shall be made. And after appearance, or on default of appearance, (the warning, or summons, being proved before them upon oath,) they may pro ceed to examine on oath the truth of the complaint, and to ascertain and state what is due and payable.
And by order under their hands and seals, they may direct and appoint the payment thereof, so as the sum ordered as aforesaid do not exceed ten pounds. And also such costs and charges, as upon the merits of the cause, shall appear not exceeding ten pounds. And on refusal to pay, any one of the two next justices, by warrant under his hand and seal, may le vy the same by distress and sale, render ing the overplus, the necessary charges of distraining being first deducted and al lowed by the said justice ; unless it be in the case of appeal, and then no warrant of distress shall be granted, till the appeal shall be determined.
As no time is limited for detaining the distress, nor charges allowed for keeping it, it may be sold immediately. Any per son, who shall think himself aggrieved by the judgment of the two justices, may appeal to the next sessions; where, if the judgment shall be affirmed, they shall de cree the same by order of sessions, and give costs against the appellant, to be le vied by distress and sale, as to them shall seem reasonable. And no proceeding herein shall be removed by certiorari, or otherwise, unless the title of such tithes shall be in question.
The withholding of tithes from the par son or vicar, whether the former be a clergyman or lay-appropriator, is among the pecuniary causes cognizable in the ecclesiastical court. But herein a distinc tion must be taken ; for the ecclesiastical courts have no jurisdiction to try the right of tithes, unless between spiritual persons, between spiritual men and lay men, and are only to compel the pay ment of them, when the right is not dis puted.