Bulstrode price plaintiff against MASCOLL defendant enter mich James b r rot  in a prohibition upon a modus WoddamWater parish in the county of Essex in a  prohibition to the spiritual court upon a libel there for tithe in his  declaration set forth five several prescription for a modus kill there plead  in discharge and not allow of and for this cause a prohibition pray demurrer  to this declaration g croak pray a consultation for that all the prescription  set forth in the declaration be have the question be for the tithe arise in  the parish of WoddamWater in the county of Essex the prescription be this to  be discliaryed of tithe herbage for barren cattle in the parish and out of the  park keep and employ only for husbandry and maintenance of his land within the  parish and so for other young cattle keep for this purpose cum to be strong  and in the interim it be lie that he have no other profit of they and in  regard that he be to have his tithe out of the profit of the land manure by  these cattle and therefore for tithe herbage of they in this regard be  prescribe to be discharge this prescription here be not good the same be too  general and trenclieth to the impoverish of the parson if he shall have no  allowance for barren cattle the second prescription be also have be this that  if he keep milkcows or ewe he prescribe to pay at Larnmas day cheese this be  not good and for fat cattle to pay nothing upon this there be a case mich  Elizabeth between doctor Lewis and gilborne where the prescription for a modus  kill be this that in regard be pay for milkcows so much S I d he prescribe to  be discharge of the tithe of milkcows and also of all other dry cattle this be  there hold to be contrary in it self for a modus for one kind to be discharge  of another kind and therefore this prescription hold not good and for this  cause the same be disallow another case there be which be a Lincolnshire case  Elizabeth b r between Sherington and Fleetwood where the prescription be to  pay so much for milkcows and ewe and for this to be discharge of tithe for  they and for all his dry cattle this be here adjudge to be a have prescription  and so here in this principal case this prescription not good and as touch  custom Littleton rule in his chapter of burgage be to be observe be this S  that custom ex certan causan rational usual private communern law so that  every custom ought to be reasonable but here the cheese to be in discharge for  the milkcows and also for all his other dry cattle this be a have custom and  unreasonable the three prescription here be lie for shear sheep to pay for  this the ten fleece and to pay no other tithe for the agistment of any sheep  and for this cause the prescription be not good for that he here prescribe to  pay no more than be ought de jure to pay and so not good also it be not hero  aver that these sheep or cow be there keep nor that he have any cow or sheep  for which he ought to pay and therefore the prescription not good the four  prescription for the latter crop of meadow out of the park this be no other  but to pay this which he ought to pay and by this to be discharge of that  which he ought to pay be the vesture and so not good the five prescription  touch the furze Bulstrode and broom the libel be be take load of broom and pay  no tithe for it the prescription in discharge of this be that the land by this  be bring intam tillage and so by this the parson to have tithe corn which  shall be of great value for he and that the broom be but of small value and  give away to the poor for PLIlling of it up and therefore he to have no tithe  of this broom but it be not aver that the broom so take be for this purpose  and therefore not good neither be it aver that this be convert into tillage in  the libel it be show that this broom be root up every year but do not show  that it be so do for this purpose to convert and turn the same into tillage  neither be it aver that this Bulstrode er p land be barren nor that the same  be convert into tillage and so the prescription not good and therefore pray a  consultation against this it be urge by davenport that these several  prescription be good as to the touch barren cattle that be keep to be employ  in husbandry and because with they the land be till and they make the increase  for that tithe corn and hay come of the labour of the beast and therefore this  be a good prescription hill James c b rot coke book of entry fol in Baxter and  hope case that for the payment of tithe corn and hay to be discharge from  payment of any thing for all his young cattle keep and breed up for  agriculture a prohibition upon this be grant and a consultation can never be  obtain the reason because that husbandry can be without cattle and therefore  not to have tithe of they and upon that record no consultation be grant there  be also some speech of the discharge of the after crop for the rewine grass as  touch this also there be a case hill James b r rot coke bo king of entry fol  Bartlet against long a case touch tithe wood a modus kill plead in discharge  of it the second prescription for lactage this be good as it be set forth for  a beginning non be ratio if the custom be not unreasonable it be then good he  will have herbage of milkcows and milchsheep and for calf also for this to  have cheese pay he on Lammas day ill consideration of the tithe of milk cow  and milk ewe and for barren cattle be to have these nine cheese although he  make but the cheese or but nine cheese in all he be to have so that this tithe  be here well satisfy with a collateral thing and so good the three  prescription for sheep to have the ten fleece f n b register fol no tithe for  agistment of land in respect of the cattle which feed there the four  prescription for the aftergrass in consideration that every one shall preserve  chiefs clipping by which the parson shall have the better tithe and therefore  to be discharge of the after crop for the tithe of it and this be call rewine  this be good for by this the parson have the great benefit the five and last  prescription be not mere to be discharge of the the broom but if he have  barren land overgrow with broom and at his proper cost and charge be root this  up and convert it into tillage to pay no tithe of this the custom be qualify  this to be convert the same year or the next into tillage and so this be not  general to be discharge of tithe broom and so the prescription here be good  and pray that the prohibition may stand coke chief justice these several  prescription here be lie to be time out of mind and upon these the council of  the other side have demurrer to demurrer upon such matter be a very desperate  kind of practice and I will never have do so but to join issue upon the custom  and first to try whether there be such a custom or not and if it be find so  then afterward to demurrer upon the validity of this in law as to the custom  for barren cattle which be for the blow or for the pale no tithe be to be pay  for the herbage of they and this be clear and so be Lynwood animal fruit  barren these exempt from tithe and this very clear and so the whole court  agree with he in all this that for barren cattle breed and keep to be employ  in husbandry for their agistment no tithe to be pay unless it be aver that  they be by he fat and sell away coke the Abba of Colchester have the parsonage  impropriate Bulstrode yet the vicar have the tithe lamb and in one year the  vicar have but one lamb and the abbot will also have this lamb of he whereupon  the vicar do write these two verse unto the abbot S velleribus centum be glad  cum milk animal for sacrifice nec think over magnum to bear nisi poor man  chastetree the nine cheese here be as well for the one as for the other as  concern the broom this be tithable notwithstanding he convert the land into  arable if the statute of e cap do not bel he Haughton and croak clear the  broom be tithable coke it be Farringtons case if wood be stock up and the land  convert into arable it be adjudge here that of this wood tithe shall be pay  for this land be fruit and therefore to pay tithe but if you will be discharge  from payment of tithe for this you ought then to aver and prove this to be  barren underwood and that you have stock up all to make way for the blow  otherwise Bulstrode er p tithe to be pay of this and so of other great wood  and so this case be adjourn unto another time afterward termin mich James b r  this matter be then move again coke notwithstanding the demurrer to the  declaration he have yet if the declaration upon the prohibition be not good a  consultation be then to be grant and this be warrant by a judgement give mich  Elizabeth between Knightley and Spencer that if the declaration upon the  prohibition he have then a consultation to be grant here the I custom not to  pay any tithe for barren cattle employ for the pale or for the blow or for  young cattle but the minor be here omit for it be not show that these cattle  be such and so not good and therefore for this a consultation be clear to be  grant the whole court agree herein for a consultation as to this the second  customer no tithe to be pay for fat cattle because to pay nine cheese on  Lammas day in discharge of tithe of milkcows and fat cattle but do not show  that he have any milk cow or that he pay any cheese at all and so not good and  therefore a consultation grant for this by the whole court coke if be pay  money for a modus kill be may sue for this though it be not allege that it be  pay there be a difference between fructuosa barren anitualia not to have tithe  in both kind notam that afterward on another day by a jury of Essex the  prescription for the modus be try at the bar coke if there have be a  prescription for a modus kill if this modus be not pay for a certain time yet  clear this do not alter the prescription for this modus but he may pay it when  he will also if there be a prescription time out of mind for a modus  deciniandi for land when it be a park this prescription shall have continuance  clear for the payment of this modus only after that such a park be dispark and  convert to another more profitable use the whole court agree with he herein  the jury upon such direction as the court give they go together and return  give a verdict for the plaintiff in the prohibition against the direction of  the court and contrary to all their evidence insomuch that the court say unto  they that they never hear of so ill a verdict they have no proof at all for  the prescription for the modus deciniandi but for the tithe to be pay in kind  and therefore the court say that it shall be try again by another jury and  will give the party no cost in this case