atkins case Hardcastle versus smithson and slater July the court think it will  be go too far to overrule the modus after the admission that tithe have not be  pay time immemorial and therefore accord to the rule of the court of exchequer  in these case direct a issue to try the modus a bill be bring by the plaintiff  as impropriator of the rectory of Coverham in Yorkshire for the tithe of  hayherbage and agistment of cattle the defendant insist that there be and for  time immemorial have be several ancient usage and custom within the several  village that all and every the occupier of land and tenement therein have use  to pay yearly on saint James day to the impropriator of Coverham certain  annual sum of thirty shilling twenty shilling c in lieu of all tithe hay  yearly happen within the land c the defendant insist as to the agistment tithe  that there be Payable by ancient and immemorial custom and usage within the  say parish one penny half penny for each milk cow have a calf and one penny  for a cow not have a calf at easter every year a crossbill be bring to  establish the modus and Mr Hardcastle in his answer I admit that there have be  time immemorial such usage and custom as be insist on by the defendant to the  original bill Lord chancellor though it be true tithe in kind be the right of  the parson yet where there be customary payment in lieu of they time  immemorial it must have weight the answer to the crossbill admit that these  payment have be accept time beyond the memory of man every purchaser who come  into the parish pay accord to the rate of these payment and buy upon the faith  of they and unless there be strong unsurmountable reason to overturn these  customary payment the court will not easy be bring quietan to move and yet  rule of law ought to be adhere to with regard to modus the question be whether  these modus can be support and if they be establish it must be on the  crossbill they be lie in this manner that all and every the occupier of land  and tenement therein c vide the word before as to these modus a great many  exception have be take that they be unreasonable because the modus be lie for  the occupier of the land and tenement within the parish atkins which may take  in house wood arable c which do not pay tithe hay and therefore there be a  presumption no agreement of this kind can be enter into between the parson and  parishioner and that it be atkins er p in the mouth of the parson to say no  such agreement can be make and I allow if there be a violent presumption of  this kind it will have weight but I think no such presumption be create here  for the land may be presume to be in the hand of one person at the time when  the agreement be make and if they be in the hand of several owner they may all  probable pay tithe hay and therefore may agree that they will pay so much for  the tithe of hay whether they will have tithe of hay or not for as they pay it  at all adventure they have the benefit of the modus when they have hay and  they may therefore have hay if they please and so be the case I Ventr c the  second objection be that the modus ought to be certain in point of quantity  and in point of remedy and in general the rule of law be that a modus ought to  be equal certain as the tithe in lieu of which it come and be so lie down in a  case in the court of king bench of startup versus dodderidge salk that a modus  ought to be as certain as the duty which be destroy by it to say it must be  equal certain do not mean that it be to be weigh by grain and scruple in a  case in hob there be a modus for a park of two shilling a year and a shoulder  of every three deer kill in the park which be now dispark consider how  uncertain this be for the owner may kill none and yet Lord Hobart be of  opinion after it be dispark the modus remain of two shilling a year I mention  this to show that when book say that the modus must be as certain they mean it  must be so take to a common reasonable intent as to the sum in the present  case they be certain but the main objection be as to the remedy for it be say  that the parson whether he sue in the ecclesiastical court or bring his bill  in equity must make all the occupier party because they be joint liable and  not several this deserve to be consider the lie of this modus do import that  all the occupier be liable and it must be understand of all the occupier of  the several will and hamlet mention in the defendant answer atkins it have be  true say that all these land may original belong to one person and that branch  it out afterward to different occupier shall not alter the modus see the case  of Sheldon against Montague in hob and Cooper against Andrews in hob as to the  lie it in occupier if this doctrine be to be allow that if a parson be under a  necessity of make all the occupier party vide mayor of York v Pilkington atk  it will be wanting roy a modus it will be of very extensive consequence and  overturn great number of modus in the kingdom the majus or minus the great or  lesser quantity of land do not alter the case so in the case of stop versus  peacock lev the modus be for all the tenant and occupier and the court of  common plea in consideration of the case aforementioned in Lord hobart report  grant a prohibition I mention this to show that these modus have be allow  notwithstanding the prescription have be lie in the occupier and  notwithstanding it have be uncertain I admit that every part of the land be  liable to the modus so that no occupier can be discharge till the whole modus  be pay the ecclesiastical court will then be justify in determine that every  occupier be liable in toto and in solid figure nun of the occupier can be  discharge unless the whole modus be pay and it be a very reasonable ground for  the court to go upon that every occupier be liable for the whole and for each  other and therefore sue a part of the occupier be sufficient if it be rest  only upon the case of the bishop of Hereford versus the duke of Bridgwater in  the court of exchequer I shall not determine against this modus without direct  a issue to try it for the case of tithe be more frequent in that court as they  have the proper jurisdiction it come twice before the exchequer first upon  demurrer before Lord chief baron Pengelly c and upon the hear before pound d  chief baron Reynolds c and the court do not say that the modus be bad but  strong incline it be good and be atkins er p of opinion that it ought to be  try for say Lord chief baron Reynolds if it be good in point of fact he do not  see why it may not be so in law there never be any appeal from this decree  though the tithe be of great value atkins it be admit by the answer to the  crossbill that the tithe here have not be pay in the memory of man and  therefore it be too much for the court to overrule the modus for all the  objection be equal proper to be insist on at the trial and to be lie before a  jury as to be insist on here it be not necessary that the description of the  land which be except out of the modus shall have the same description as when  the modus be first settle for if they agree in point of fact it will be  sufficient I be of opinion to follow the same method and rule as the court of  exchequer and to direct a trial which be direct accord