case rudge and james hopkins plaintiff vers robert chapman clerk robert bishop  OF peterborough John hopkins christopher hopkins and inhabitant de BRAYBROOK  in come Northampton bill to establish a modus when proper a bill be exhibit by  the plaintiff set forth that the plaintiff Rudge and John Hopkins decease be  seize in fee of certain land late purchase by they in the say county without  any benefit of survivorship that they be sue by the defendant as rector of the  parish of Braybrook for the tithe of the say purchase land who by his answer  insist that Robert chapman the plaintiff in that cause hold and enjoy a parcel  of meadow land call the dale in lieu of all tithe hay arise upon the say  purchase land comens that after issue and examination of witness the cause be  bring to a hear on the that of November and on the hear the plaintiff bill be  dismiss with cost that John Hopkins by will date the that of November devise  his moiety of the purchase premise to the plaintiff I Rudge James Hopkins and  sir Richard Hopkins and their heir upon certain trust therein mention that the  plaintiff John Rudge refuse to act by a decree in chancery release to the  other trustee and sir Richard Hopkins be since dead whereby the plaintiff  James Hopkins be become the only survive trustee of the will of John Hopkins  so the bill pray that this modus may be establish by the decree of the court  it be not proper to pray such a decree because the plaintiff have not make  proper party first the modus allege be that the rector enjoy all the meadow  call dale in lieu of all the tithehay arise in that parish and all the  landowner of that parish be not make party say non allocatur for Hawkins and  the other defendant be name to be the landowner of that parish and although it  be not say that they be all the land owner non constat that there be any other  and if there shall be they can be bind by the decree and it shall not be  intend unless it have appear second it be say that Rudge be entitle to a  undivided moiety of the purchase land and the other plaintiff be only the  survive trustee of the other moiety but upon what trust do not appear and the  beneficiary and trust be not before the court to which it be answer the  plaintiff be trustee for person not in be and it be declare in the house of  lord by Lord Hardwicke that person not in be may be bind by a decree that it  have be settle late in chancery upon Mr hopkins will that till the beneficiary  and trust appoint by the will shall be in be the estate descend to the heir at  law comens who be make a defendant and do not oppose the decree and be the  defendant though no decree can be for he yet it will be mischievous if any  refuse to be plaintiff shall hinder he who bath a joint interest with he from  sue for his right and it be therefore always think sufficient to name he a  defendant as he be in this case but of this the court take time to consider it  be to be observe that the plaintiff come for a favour not for the recovery of  a right if the defendant shall sue for tithe in specie again the plaintiff may  bar his demand by the same mean as before as it be unlikely that the defendant  shall again attempt a unsuccessful suit bill of peace be proper in equity but  it be where the right have be settle at law by a trial and appear to be on a  good foundation second it do not appear by the bill what interest the parson  have in the meadow of dale whether he and his successor be to enjoy it three  that the plaintiff be entitle to a moiety only of the estate claim to be  exempt comens er p