case hill against harris modus for tithe prohibition on a suggestion of a  modus lie by way of custom for a groat to be pay for every hogshead of cyder  or two shilling per annum in lieu of all tithe of all grain and fruit in any  such orchard grow and another custom of the parson a cro James SC   and see  the plead   Ent b cro James c cro James shower KB er p have the sole milk and  milk of all our milk cow for so many week after midsummer and so many week  after Michaelmas in lieu of all tithe of milk and we shower KB suggest the  statute of improvement as to part upon this suggestion I pray a prohibition to  a libel in the court Christian for tithe quoad hoc and upon debate it be grant  Mr pollexfen ex direction opposite I argue that a prohibition may be grant as  to part be every day practice and so be the case of lush v web a I which there  be another case cite to have be so adjudge the term precedent and as to the  last part nothing can be say but we must have a prohibition quoad the part and  nothing be say against it and as to the first I argue that it must be agree  that if the soil of a orchard be sow with any kind of grain tithe shall be pay  of the fruittree and the grain both and so be Inst a because they be of  several nature and kind but yet this modus be good this be different from what  be by law due of common right and it be that which can never turn to a non  decimand but be as perdurable as the claim of tithe it be certain enough we  fix it in a certain tenement and this be as certain as any modus whatsoever  that be in lieu of any particular grain because that may be sow sometime in  one place sometime in another or that of the shoulder of a deer or two  shilling in cowpers case b and agree to be good if the park be continue though  never a deer be kill in the year or that of dr grant of so much per pound for  rend of house in saint Martin Le grand c which may sometime be high and  sometime low it be as certain as a common to be take this year in one acre and  the next year in another acre unto which another prescription may be make and  so may a man have such a movable inheritance as one of two manor changeably  every year d so that the objection of the uncertainty here can have much  weight a modus may be for a garden or orchard which shall cease when convert  into arable and if a penny may be pay for the fruit and herb twopence may be  pay both for the fruit and grain reynolds case e by Rep it appear that in all  modus no respect be to be give to the value of what be yield in satisfaction  of tithe shower KB if a modus be for hay in black acre and the party sow the  same with corn seven year together that do not destroy the modus but  whensoever it shall be make into hay the modus shall be in force brown case f  so if a prescription be for a modus of a orchard or garden and it cease to be  such the modus shall cease and the tithe be pay in kind but if it afterward be  restore to a orchard or garden again the modus shall be pay this be agree in  the case of Cooper v Andrews g from whence it may be infer that if so the  prescription be good enough in any orchard because if it cease the tithe in  kind be to be pay in any orchard that be so long as it continue such grain  grow in hujusmodi orchard be so long as it be pomar we have a prohibition and  order to declare thereon and upon it issue be take