bennet versus trespass BOCKET and whitehall see pain v Esdaile App Cas the  custom of pay tithe in London the case be that the plaintiff have be vicar of  the parishchurch of saint Giles without Cripplegate London ever since the that  of April do in Trinity term Geo exhibit his bill in this court against the  defendant for tithe in Gilbert report er p London after the rate of S d per  pound accord to the yearly rend of their house by virtue of the statute and  decree h the defendant trespass be on the say that of April and have ever  since continue a occupier of a house within that part of the say parish which  lie within London or the liberty thereof of the yearly value of pound Bockett  of another of pound per annum and Whitehall of two house from April the that  aforesaid till midsummer at pound per annum there be no proof in this case  whether these house be or any of they be in lease at the time of make the Act  or not nor that the sum of S d in the pound be at any time pay accord to the  value of the house accord to the statute and decree of h but it be prove by  some of the plaintiff witness in their cross examination on the part of the  defendant that till the time of the present vicar they never hear of any such  demand as S d per pound for tithe within the say parish that in two ancient  TitheBooks there appear charge for tithe against the name of the then occupier  of Trespasss house the several sum of S and S d and S d so charge which say  sum of S d and S d be prove to be the collector handwriting but the S be of  another handwriting and in another book the several sum of S d and S d so  charge and prove to be the collector handwriting but no customary sum modus  Gilbert or other certain sum be prove to have be ever pay than as aforesaid  that in a book commence in and end in the year Bocketts house be charge S d  and Whitehalls house S each it be prove by one surety that for nine year  during the time of bishop foul he live in Trespasss house and during that time  he never pay more to the vicar than S per annum videlicet S d per quarter the  question be if S d per pound of the yearly value of the say defendant  respective house be due for tithe by virtue of the say statute and decree of h  or not for the plaintiff it be argue that the sum of S d in the pound ought to  be pay by the decree on the statute of h cap and they look upon that statute  to be the general law of tithing in the city and that if the defendant can not  set up a modus or composition whereby it appear that they pay less that this  rule of tithing ought to take place and they make several objection to this  modus set up by the defendant as first that it be not prove to be time out of  mind and nothing less than a immemorial custom ought to be a bar against a  common right second it be not set out that the modus be pay annual or  halfyearly and if the particular time of the payment of a modus be not set out  that modus be not well plead nor be it a good bar and the reason be because  the original agreement must be certain that the person may know when and what  to demand but here there be no time set forth in this modus and therefore it  can be no good bar nor be the modus tender to the plaintiff in this case they  quote for the plaintiff a decree in the James wherein the court have decree S  d in the pound and likewise the case of Sheffield and sery to go in mich and  likewise the case of Humfrevill and Plumstead Trin car grant and cannon mich W  if sir patience ware and other versus Kidder W m sayer versus Mumford mich W m  and the case of Townly and Wilson Julii in all which case the court have  decree the sum of S d per pound accord to the say statute and decree and Mr  baron price who be of opinion for the plaintiff say the statute be think to be  in derogation of the right of the clergy for it appear by Linwood and by stow  that the laity use to pay d in the pound to the clergy upon every Sunday and  holiday which come to a great sum than S d videlicet S d per pound but it be  resolve by the other three judge that the case upon this statute be not like a  modus for the decree in the statute be that all house within the city of  London and liberty shall pay S d for every S rend and then come the provision  in the that section Gilbert provide also and it be agree that where any less  sum than S d in S Gilbert report er p rend have be accustom to be pay for  tithe that then in such place the say citizen and inhabitant shall pay only  after such rate as have be accustom now they say it be plain by the statute  itself and by the citation before mention in Linwood that in many place in the  city there have be a custom to pay tithe accord to the pound rate and these  the statute never intend to alter or enlarge but to establish for the statute  be not design in destruction of any settle right nay they take it far that if  there have be a payment of lesser sum by agreement between the parson and  parishioner they be confirm by the statute because it be the design of the  statute to settle such customary payment and it be their design that they  shall not be unravel on either side and accord such customary payment and  agreement have be comply with ever since the statute and that lesser sum have  be pay by almost every parishioner to the parson and therewith they have be  content and although several decree have be make in this court for payment of  S d in the pound yet no customary payment in any parish have be set aside or  break through but these matter have be compound between the party and the  manner of tithing have continue the same in each parish except in such parish  as be otherwise regulate by the statute car c they say that the that proviso  be a perfect exception of all those that have pay lesser sum out of the decree  and therefore this can not be urge as a modus or set up in bar of tithe for  tithe be original due and therefore the bar must be complete but there be no  tithe of house due of common right for they be none of those thing that to  renew in annum and therefore the commonlaw which follow the levitical pattern  do not make they tithable and therefore they be tithable only by custom or  agreement where there have be such custom and agreement the new rate of S d  per pound be superinduce by the decree and it be a strange thing to say that  the decree be in prejudice of the clergy when it appear that less sum be now  constant pay for house in the city than what will be pay if they be rate under  the decree and note it appear the ancient payment in lieu of tithe of house in  London be somewhat less than S d per pound but it plain appear that before the  dissolution of monastery a great deal of service in London be perform by the  regular priest who not only say their mass but visit the sick and perform  office of devotion in many part of the city and when they be extirpate this  duty fall upon the parochial clergy and then it be necessary that their  maintenance shall be increase and therefore this decree be make that all  person shall pay the receive rend from house that be where there have be  accustom payment the tithe be to continue Payable accord to that Gilbert  custom and where there be no immemorial custom yet if there have be by  agreement c a payment for year pass this accord to the frame of the statute be  to be look upon as a customary payment for the division and severances of the  house wharf and warehouse be to be as they have be for year pass so that the  construction seem to be that if there have be a agreement to pay tithe for  year pass they be accustom payment within the statute and this will form a  uniform notion that if there be tithe by custom or by agreement for year pass  they be within the proviso of that statute but where there be no such accustom  payment there the statute be introductive of a new law and lie the charge upon  all other to pay S d in the pound as to the objection that there be no  particular time of payment allege baron page say that the statute by the that  proviso have appoint the payment of tithe quarterly and therefore it need not  be set out in the bill as the authorize payment but it seem doubtful whether  that proviso extend any far than to the S d mention in the decree and not to  the accustom payment mention in the that section of the Act but in this all  the three judge agree that they be not oblige to set up these customary  payment as Moduss in bar of tithe for these customary payment be exemption out  of the decree and therefore in what manner soever they have be pay if there  have be a customary payment since the statute of a lesser sum they can be bind  by the decree to pay S d per pound Gilbert report er p now if all that pay  less sum be exempt from payment under the decree and be not within the decree  nor within the obligation of the statute we ought to try whether there be such  accustom payment or not especial since in this case it appear by the book of  the parson that less sum be collect and it can not have be presume that they  will have collect in that manner if they have not be the old accustom payment  for how can those sum have come into the parson book if they have not be the  old accustom due and the difference of the payment in the book may be  reconcile by suppose some of the to be quarterly some halfyearly payment this  case relate to the inheritance and the inheritance be to be bind by our decree  and where the inheritance be charge mere by custom it be usual and just if the  party desire it to try such custom at law therefore the court direct a issue  at law to try whether any less sum than after the rate of S d in the S rend  have be accustom to be pay by the defendant for tithe and what such sum be in  this case be quote Inst Noy lard Watson to cro car Yelv more   grant case from  this decree the plaintiff appeal to the house of lord where the decree be to  differ allotment of land just affirm