Jesus College, Oxford v Gibbs and Others
| Jurisdiction | England & Wales |
| Judgment Date | 13 July 1835 |
| Date | 13 July 1835 |
| Court | Exchequer |
English Reports Citation: 160 E.R. 181
IN THE COURT OF EXCHEQUER IN EQUITY
S. C. 4 L. J. Ex. Eq. 42.
[445] jesus college, oxford v. gibbs and others. June 8, 15, July 13, 1835. -Where the defendants in a tithe suit set up by their answer certain yearly payments as moduses, but insisted that if the same, for any reason, were not good and valid moduses from time immemorial, they must be taken to have been payable as a good and valid real composition, made with the assent of all parties whose assent was necessary thereto, and before the restraining statute of 13 EHz Held, upon a re-hearing, that the allegation as to the real composition was not shaped as stating a fact in the alternative, but only as introducing an argument, and therefore might be rejected as surplusage, and that the defendants, under the circumstances of the case, were entitled to an issue as to the modus [S. C. 4 L. J. Ex. Eq. 42.] This cause (ante, p. 145) came on for re-hearing and was argued at great length. The defendants' counsel contended that there was no rule in equity compelling a defendant to reduce his defence to a single point. That at law duplicity of pleading was not allowable; but that the inconvenience of this rule had been felt, and statutes had been passed to remedy the defect. That, although the defendants suggested the 182 JESUS COLLEGE V. GIBBS 1 Y & C EX 446. possibility of a real composition, yet they did not abandon their defence by way of modus. That what was said in the answer as to the real composition was urged as an argument only, and was not stated as a fact; being, in truth, but a mere suggestion as to what conclusion of law the Court should draw from the previous passage, that it was a bad argument, no doubt, but might therefore be rejected as surplusage. That, after all, a composition real and a modus weie substantially the same, although there was some difference in the proof That here, however, the composition suggested by the defendants was not distinguishable fiom a modus, inasmuch as it was not alleged to have been made since the time of legal memory, but only by consent of all parties whose consent was necessary, and before the restraining statute of Elizabeth. That this was not a case where the defendants, having failed in the first defence, were resorting to a second; but, having succeeded in the first defence, were willing to repudiate the second In addition to the authorities produced on the foimer...
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