case Mallock against browse if it appear that a pecuniary payment have be make  for any sort of tithe the court will help the imperfect manner of set out the  modus in a ancient account cyder d per hhd a issue direct whether a modus of d  per hogshead through out the parish see butchery hill ante lib Reg b foe at  the roll rd and that Feb bill by plaintiff as impropriator of the rectory and  vicarage of Termoham and Cockington in Devonshire for tithe of apple except  for ancient orchard in respect of which the bill admit a modus the defendant  in his answer which be very confuse and unintelligible set out the copy of a  paper write which he have from the steward of Carey Esq contain a account of a  modus in the parish of Cockington and which account defendant say in his  answer he believe to be true and in it be say cyder d per hogshead in another  part of the answer he insist that tithe of apple though grow in late plant  orchard be not Payable in kind it be insist for the plaintiff that it do not  appear what the modus be which ambler er p ought to be set out with some  degree of certainty that the plaintiff may know what the defendant rely on and  how to apply his evidence sir Thomas clarke master of the roll if it appear  that a pecuniary payment be make for any sort of tithe the court will help the  imperfection in the manner of set out the modus and put a sense upon the word  and accord direct a issue to try whether a modus of d per hogshead of cyder be  Payable throughout the say parish in lieu and satisfaction of tithe in kind  for such apple as be use in make such cyder in one case in the exchequer  William v William wood decree eagle and young where a different modus appear  upon the evidence from what be state in the answer the court direct a to try  the modus as prove but in a late case Scott v Fenwick wood decree eagle and  young the same court under similar circumstance refuse to grant a issue but  the evidence be very strong the bill be dismiss see wood v Harrison post and  Atkins v Willoughby de brook Anstr Eagl and young Blackburn v Jessop Ves  Swanst see friar v sims e you Antrobus v east India company Ves the defendant  his answer state that about the year he enter into a composition with  plaintiff father for payment of a certain sum in lieu of all tithe and have  continue to pay same to plaintiff father to his death and that plaintiff  himself have for a certain time and up to continue to receive the same that  when such composition be enter into no question be make about the customary  payment and he then among other thing insist that no tithe in kind be Payable  of apple though grow in late plant orchard which within the memory of man have  be ground and render tithe in kind and that there be a modus of a garden penny  Payable in lieu of pea bean carrot and other garden stuff grow in garden or in  case the garden be too small then in some corner of a field in case the same  be use in the family of the occupier of the several estate within the say  parish and say that about forty year ago I S decease the steward of George  Carey decease give defendant a paper write which he tell he be a copy of the  mode of tithing within the say parish of which defendant take a copy by which  it appear that accord to the custom of tithing within the say parish so far  down as the tithe of wool be pay at the shear time and then after set out a  complex customary payment for lamb for herb and root a garden penny wood a  hearth penny milchcow a penny c c for egg colt c c and defendant believe say  paper write contain a short but true account of the ancient custom and method  of tithing within the say rectory and of the pecuniary payment in lieu of  tithe ancient use therein and that such paper though not sign be not make of  late year b mere hearsay but defendant the rather believe so because plaintiff  have admit by his bill some of the moduses and the plaintiff have be credible  inform and believe that plaintiff ancestor or one of they actual receive  pecuniary payment accord to some of the moduses mention in such paper write  for several year together and he have never hear nor do he believe that any  tithe in kind be ever pay within the say rectory that defendant father have  receive d a hogshead for cider and that defendant have in his possession a  receipt sign by plaintiff fatherpaid he d per hogshead for thirtyone hogshead  of cidergreat part of which defendant remember be make from apple grow in new  orchard it do not appear whether any evidence be go into it be state in lib  Reg that on hear the bill and answer read and what be allege by the counsel on  both side a issue be direct to try whether a modus of d it for every hogshead  of cyder make from apple grow within the say parish be Payable it to the  impropriator in lieu and satisfaction of tithe in kind for such apple as be  make into cyder and second a issue to try whether a modus call a garden penny  be due and Payable by the occupier of every ancient house within say parish to  the impropriator in lieu and satisfaction of all garden stuff use and consume  in the family of such occupier and not sell and in case the jury find there  have be any other payment than those mention in the issue it be order that the  same be endorse on the postea the cause come on again for further direction on  the that of march lib Reg b foe and on the that of Jan l r b foe and it appear  that as to the first issue the jury find that ambler er p from time immemorial  the sum of d and no more have be pay and ought to be pay to the impropriator  of say parish for every hogshead of cider make from apple grow within the say  parish and the titheable place thereof as a modus for and in lieu of tithe in  kind of the apple use in the make the same and as to the second issue that  time immemorial the sum of one penny call a gardenpenny and no more have be  pay and ought to be pay yearly to the impropriator by the occupier of every  ancient house within the say parish for and in lieu of tithe in kind of all  garden stuff use and consume in the family of such occupier and not sell and  it be now order that the bill so far as it pray a account of apple grow within  the say parish make into cider and for all garden stuff use and consume in the  family of the occupier of every ancient house within the say parish shall  stand dismiss with cost and that the plaintiff shall pay to defendant all his  cost at law to be tax and a account be direct of what be due in respect of the  say two moduses and a account of all the other titheable matter and thing seek  by say bill