as evidence to ſhew that it once did exiſt, and that from thence ſuch uſage was derived. Now time of memory hath been long ago aſcertained by the law to commence from the reign of Richard the firſt[1] and any cuſtom may be deſtroyed by evidence of it's non-exiſtence in any part of the long period from his days to the preſent: wherefore, as this real compoſition is ſuppoſed to have been an equitable contract, or the full value of the tithes, at the time of making it, if the modus ſet up is ſo rank and large, as that it beyond diſpute exceeds the value of the tithes in the time of Richard the firſt, this modus is felo de ſe and deſtroys itſelf. For, as it would be deſtroyed by any direct evidence to prove it's non-exiſtence at any time ſince that aera, ſo alſo it is deſtroyed by carrying in itſelf this internal evidence of a much later original.
A prescription de non decimando is a claim to be entirely diſcharged of tithes, and to pay no compenſation in lieu of them. Thus the king by his prerogative is diſcharged from all tithes[2]. So a vicar ſhall pay no tithes to the rector, nor the rector to the vicar, for eccleſia decimas non ſolvit eccleſiae[3]. But theſe privileges are perſonal to both the king and the clergy; for their tenant or leſſee ſhall pay tithes of the ſame land, though in their own occupation it is not tithable. And, generally ſpeaking, it is an eſtabliſhed rule, that in lay hands, modus de non decimando non valet[4]. But ſpiritual perſons or corporations, as monaſteries, abbots, biſhops, and the like, were always capable of having their lands totally diſcharged of tithes, by various ways[5]: as, 1. By real compoſition: 2. By the pope's bull of exemption: 3. By unity of poſſeſſion; as when the rectory of a pariſh, and lands in the ſame pariſh, both belonged to a religious houſe, thoſe lands
- ↑ This rule was adopted, when by the ſtatute of Weſtm. I. (3 Edw. I. c. 39.) the reign of Richard I. was made the time of limitation in a writ of right. But, ſince by the ſtatute 32 Hen. VIII. c. 2. this period (in a writ of right) hath been very rationally reduced to ſixty years, it ſeems unaccountable, that the date of legal preſcription or memory ſhould ſtill continue to be reckoned from an aera ſo very antiquated. See 2 Roll. Abr. 269. pl. 16.
- ↑ Cro. Eliz. 511.
- ↑ Ibid. 479.
- ↑ Ibid. 511.
- ↑ Hob. 309. Cro. Jac. 308.
