case james against trollop ancient grant of franchise and liberty must be  allow in eire or they can be plead but a private grant though make beyond the  time of legal memory may be plead though not allow as a grant of a manor from  a prior in the reign of Henry the first S C Pollexf S C skin S C show error of  a judgement in the common plea in a action upon a prohibition where the  plaintiff do suggest that William late prior of Norbury in Staffordshire be  seize of the say manor and of the tithe thereof simul el semel as of a portion  of tithe c that the say prior in the twentyfifth year of Henry the first grant  the say manor and tithe to William Fitzherbert and his heir render rend that  the say Fitzherbert do enter and be seize and hold it discharge of tithe that  his heir afterward grant two hide of land part of the say manor to S with the  tithe at five shilling rend and so draw down a title by descent for three  hundred year to f who be seize devise the same to Dorothy James under who the  plaintiff in the prohibition claim and then conclude that Fitzherbert and all  those who estate c do pay the say rend to the say prior which since the  dissolution be pay to the king and his assign in discharge of all tithe c the  defendant have crave oyer of the deed demurrer to the suggestion and judgement  be give for the plaintiff in the common plea and it be now say for the  plaintiff in the error that it do not appear by the plead whether the  plaintiff in the prohibition will discharge himself by a prescription in non  decimand or in modus kill for the grant from the prior be the foundation of  his title he can not thereby be discharge because a deed before memory can be  plead unless it have be allow in a court of Eyre or some court of record since  memory and this deed be date in the reign of king Henry the first which be  sixtyfive year before the time of memory by the commonlaw that beginning in  the reign of Richard the first a see by Com note S a whatever be before that  time can be try by law if it have be allow in eire or in some of the court of  record it may be plead but no usage in pais can confirm it modern first but  suppose the deed to be good the plaintiff have allege a grant of a portion of  tithe which he can have for at the commonlaw a layman be not capable of tithe  inprender for no one have capacity to take or receive they save only spiritual  person for which reason a layman can not prescribe in non decimand but in  modus kill he may because there be still a annual recompense in satisfaction  thereof b see crio elizi hob cro James Bl Com b second it be not allege that  the place where c be parcel of the demesne of the manor therefore for what  appear it may have be always in tendency and though a prescription to a modus  by the lord for himself and all his tenant be good because it may have a  lawful beginning for the land at first may be all in his hand before it be a  manor and so much pay for the tithe thereof yet such a prescription by a  tenant be not good three be have allege payment to the prior and afterward to  the king and so will infer a modus to which he have not positive prescribe but  by a old deed upon payment of five shilling to all those who estate c and this  will not do for unless the modus do go to the person who by law ought to have  tithe or unless it be for his benefit it be not good as where it be allege  that he ought to be discharge because time out of memory be employ all the  profit of the land for the repair of the body of the church and to find  necessary c this be not a good modus because it be no recompense for the  parson but it be say by sander for the plaintiff in the prohibition that by  the suggestion there be a good title allege to be discharge of tithe for it be  set forth that the prior have a portion of tithe and the land simul el semel  and be a corporation they may prescribe for tithe in prender and the tithe be  well in they they may well grant it to Fitzherbert pay five shilling and  constant payment be modern er p allege ever since it be a good title as to the  deed it be true that it be date before the time of memory but yet it be  pleadable because it be a private deed and so need not be allow in eire or in  court of record for such as be not to be plead unless allow there be only  grant of franchise and liberty from the king but the confession of the deed to  be beyond memory and the constant payment of five shilling be a sufficient  title to the plaintiff if the deed be not pleadable and if it be then it be a  good discharge that way modern and as to the objection that the modus be  Payable to a wrong person there be many such which be not pay to the parson of  the parish but to layman but in this case it do appear that there be a modus  in the prior which be receive till it come to the crown it be good although  now pay to other so that for that reason the spiritual court ought to be  prohibit and of that opinion be all the court for if a modus be Payable to he  who have the right of the tithe though it be not to the parson of the parish  it be well enough especial where the plaintiff as here allege it to be a part  serum belong to the prior so that it can be say that the parson have not quid  pro quo for he have nothing at first this composition be make with the prior  and the plaintiff be only to show payment to he and to those who have his  right and as to the date of the deed it be pleadable though time out of memory  because it be a private deed but grant of franchise and liberty must be allow  in eire and so be my Lord roll to be understand in his abridgement whereupon  judgement be affirm