case chapman all plaintiff the bishop of lincoln Mr mounson and Mr Dobbs  defendant and e contra in court Lord chancellor Mr justice Reynolds b b Mr  justice fortescue c b Ant Cas S c Mr solicitor general for the defendant the  question be whether these moduses be good in law there be something on the  face of they extreme particular they do not draw a line between the  parishioner and the outdwellers but he that life in either of the parish and  occupy land in one of they pay tithe in kind but if he life in neither of the  parish he pay only fourpence a acre No rule be more establish that relate to a  modus than that it ought to be certain in respect of the land the person the  time and the sum and that it ought to be as certain as the tithe in who room  it come but this modus be uncertain in all these respect if today the land be  occupy by the inhabitant of either parish tithe be to be pay in kind if  tomorrow they be occupy by stranger this modus only be due suppose these land  be joint occupy by two one of which live in either of these parish and the  other in neither of they how be they to pay tithe either both the tithe in  kind or both a modus or one tithe and the other a modus or suppose the  occupier life one time of the year out of these parish and the other in one of  they what be he to pay and be a modus to depend on the residence of the  occupier which be variable and uncertain and entire in his own breast and the  impropriator can not follow so variable a right and as a modus ought to be  certain so it ought not to be subject to any fraud tithe must follow the  nature of the land and only change as they do but here the change depend on  the will of the occupier whether he will reside or not how be it possible for  the rector to deal with these people for his other tithe if they can bring he  to their term they will threaten to remove to another parish and may cheat he  by remove only to the other side of the hedge and we have prove this to have  be real do and that one go and build a house on the other side the road in  another parish mosely report as these moduses then have no reason to support  they and be liable to this fraud and we have prove it to have be put in  practice your lordship will not establish They they say there be the like  customer payment in skein and other neighbour parish with this difference that  the modus extend to all stranger but the custom as to that parish be adjudge  at law to be a void custom can in the case of bawdry versus bushel keb Cas lev  Mr Lutwyche there must be a certainty in a modus that the parson may know what  to demand and it may be sue for in the spiritual court but can any one tell in  this case what the parson will be entitle to a modus suppose a ancient  contract to mosely report er p have so much yearly in lieu and discharge of  tithe and it must be perpetual but this custom be desultory there ought to be  a certain and perpetual rule for the parson to go by in his demand this modus  be uncertain too as to the place it may be convert into arable land and then  it must pay tithe but when it be pasture or meadow by only step into the next  parish the occupier instead of pay tithe be only to pay this modus and the  parish may combine together you shall live in my house and I will in you and  there be no reason or foundation for this custom if any privilege be to be  allow to the occupier the parishioner ought to have it in respect of the  burdensome office they undergo and as this be a discouragement to the  inhabitant so it be a loss to the parson too for the more inhabitant there be  the great be his small tithe in the case of bawdry versus bushel the court be  so clear as to the illegality of the modus they will not grant a prohibition  and this case be strong because the plaintiff pray to have these moduses  establish Mr peer William tithe be the revenue of the church and due of common  right which it be unreasonable the parson shall be defeat of by the act of the  tenant and so slight a act too as a removal whereas no modus be good that  depend on the act of the party without it be some benefit to the parson roll  ab to repair and beautify the body of the church and to find necessary for it  be no good modus because the parson have no advantage by it yet that be a  pious and expensive work but what do the parson gain by the removal or what  expense be the party put to and if a reasonable mosely report commencement if  it can be show it be not a good modus the modus be to arise though the  occupier take only a lodging in another parish and though he leaves his house  empty what reason what foundation can be give for it and it tend to depopulate  and desolate a parish for interest will always be a prevail motive a good  modus must arise from the consent of the parson patron and ordinary but how  can we ever suppose the parson will consent to these moduses it be a rule as  to a modus that no custom introductive of fraud be to be allow Leon Stebbs  versus Goodlack more Cas the custom be that the parson shall have for his  tithe the ten land sow with any manner of corn and he shall always begin his  reckon I at the first land which be next to the church c the parson show that  the defendant by fraud and covin sow every ten land which belong to the parson  very ill and with small quantity of corn and do not dung and manure it as he  do the other nine part by mean whereof whereas the other nine every of they  yield eight cock the ten yield but three cock and for this matter the parson  libel in the spiritual court and confess the custom but for abuse the custom  pray to have his tithe in kind the defendant pray a prohibition more Cas and  the parson a consultation and the opinion of Wray justice be that the custom  be against common reason and so void cro Elizabeth it be adjudge in sir  Charles morrison case quote in the case of Grysman versus lews where one  prescribe to pay the ten part of corn in the sheaf for the tithe of all which  in the sheaf and of all which be rake that this be a unreasonable prescription  for then he may put the lesser part in sheaf and leave the great part to be  rake another rule be that a modus ought to be certain and permanent salk Cas  startup versus Doderidge a modlis to pay S in the pound of the improve rend be  hold nought upon a motion for a prohibition for that be to rise and fall as  the land be let and the parson can know it salk Cas   b lev and this custom be  unreasonable as it give a great privilege to foreigner than inhabitant lev and  though the reason give in that book be not law yet the inhabitant be subject  to burdensome and expensive office from which nonresident be exempt for by the  of Elizabeth the overseer and churchwarden be to be choose out of the  inhabitant and therefore there be more reason to favour they mosely report be  leave the parish a good consideration the plaintiff do not set out for what  time there must be a nonresidence will a week or fortnight be sufficient Mr  attorney general for the plaintiff notwithstanding the defendant have say that  a modus ought to be more clear and positive when the plaintiff pray to have it  establish than when it be set out by way of defence yet in both case it must  be prove and must be good in law which be sufficient we have prove these  moduses beyond all contradiction and the defendant have not produce one  instance that tithe be ever pay in kind and therefore they must show very  strong argument against the legality of they and after such long usage they  must not be set aside on slight ground mosely report er p to the prejudice of  those who have purchase the land and who interest must be consider as well as  the parson two thing be necessary to a modus immemorial usage and payment of  quid pro quo which we have prove and second a reasonable commencement and it  be sufficient to show that a modus may have a reasonable commencement though  we can positive prove that be the reason of it the fact be that these large  parish contain a much great quantity of ground than can some year ago be  occupy by the inhabitant therefore that the land may not lie waste which will  be a loss both to the parson and the owner for the encouragement of stranger  to occupy these land and that the parson may have something the parson patron  and ordinary come to a agreement with they for the payment of the annual sum  and it be sufficient for we to show that this may have be the reason for these  moduses but it be not necessary for we to prove it be so as to the case in lev  the law make no difference whether the modus tend to the parishioner or of  stranger and if the custom have extend to all stranger they will have be more  prejudicial to the parson and the reason of they may have be to prevent any  fraud from the two parish lie so contiguous most of the defendant objection  arise from the case of bawdry and bushel but no conclusion can be draw from  that case that will govern this Keble have not set forth the modus for pasture  and meadow ground but general for every acre of land mosely report their first  objection be that these moduses be unreasonable but I have show there may have  be a very good reason for their commencement and therefore any objection to  they be of no weight and the same may be make to many moduses which have be  adjudge good in law second it be say that these moduses be invent to cheat the  parson but this be no objection unless they can prove that such a use have be  make of they that the occupier remove on any quarrel with the impropriator or  to distress he as to the other tithe and all moduses be liable to fraud but it  be not easy for the parishioner or probable that he will leave his abode on  this account and he will lose more by quit his house than he can save by the  tithe three they say these moduses be not certain as to the person or as to  the land but a prescription for a modus kill need not be more fix than for a  non decimand the cistercians be discharge of tithe Interrog  in not common  with others shades of dead c which be a variable prescription as to the person  why may not land be liable either to pay tithe or a modus in respect of the  occupier as well as by course of husbandry Godbolt brown case there be a modus  for tithe hay in a particular field which be sow for seven year that do not  destroy the modus but the rector shall have the tithe of the corn the vicar  the modus for the hay it may be say in that case shall it be in the power of  the occupier whether he will pay tile in kind or not or to who he will pay  they that be as variable and dance as the present custom and put it also in  the power of the occupier to who he will pay such a modus have be allow good  at law cro Elio Coteford versus pea the parson sue the defendant for tithe in  specie of certain pasture in n the defendant for a prohibition surmise that he  be a inhabitant in S and that time out of mind every inhabitant there that  have pasture in n have pay tithe for they to the vicar of S and that the vicar  of S have pay the parson of n twopence for every acre and the court hold that  the prohibition do lie for it be as if he have prescribe to pay twopence for  every acre cro Elizabeth and there be many case in the exchequer in which this  modus have be establish the case in roll abridgment that the occupier use to  repair and beautify the church and therefore ought not to pay tithe amount to  a non decimand but here the parson have fourpence a acre mosely report the  case of startup and Doderidge be to pay two shilling in the pound of the rack  rend or best improve value which be uncertain here the sum to be pay be fix  and certain Mr will the constant usage prove that there be such a contract and  we have prove that the same modus be constant pay in the parish of Skegnes  notwithstanding the prohibition be deny in the case of bawdry and bushel and  the inhabitant have more benefit than stranger they have the instruction of  the minister mosely report er p the first objection be that these moduses be  uncertain which have be full answer but they be as certain and permanent as  many other which have be establish where a modus be for tithe of hay and if  the land be sow to pay tithe in kind in that case the parson can tell  beforehand how much he shall have the next year he can tell whether it will be  mow or sow while the land be occupy by a parishioner c tithe in kind be to be  pay if by a stranger fourpence c a modus be not permanent when any one year  nothing be to be pay to the parson because that will amount to a non decimando  but here something must be pay and these custom be certain as to the land they  be for meadow and pasture ground and as to the person too they must be pay by  the occupier the second objection be that they be liable to fraud but moduses  more subject to fraud have be establish for if they be make use of to cheat  the parson the court will relieve he and make they pay tithe in kind which  account for the case of Stebbs and Goodlack where the court will not grant a  prohibition in support of a cheat though the modus be confess but more in the  report of that case Cas say a prohibition be award notwithstanding the covin  because the parson may have a action on the case for the fraud at the  commonlaw the glebe do not pay tithe to the vicar yet if the impropriator put  cattle when yearn on that land the vicar shall recover the tithe because of  the fraud more c S cro Elizabeth more Cas hob the other objection be that the  parson must have a benefit so he have by these moduses they can mean that he  must have as much as the tithe for then the objection will run to all moduses  but that what come in lieu of the tithe must be pay to the parson himself  mosely report Mr Cresa there be many precedent of such a modus be adjudge good  hill can rot in c b brown Entr the vicar libel for tithe in the spiritual  court and a prohibition be grant on suggestion that stranger who occupy land  in that parish shall pay a modus of tenpence a acre and there be many decree  for the payment of such a modus in the court of exchequer Trin can piggot  against Lovel the vicar bring his bill to be pay tithe in kind and the  defendant suggest a custom for foreigner to pay fourpence a acre for tithe of  meadow and pasture and a issue be direct and a verdict find for the defendant  and the bill be dismiss both these resolution be prior in time to the case of  bawdry and bushel which be in the can and there have be many such decree since  that time too hill can the rector file his bill for such a customary modus of  sixpence a acre and the modus be establish Trin can a bill be bring for  payment of tithe the defendant plead such a custom as in this case and two  issue be direct one whether there be such a custom and the other what land the  defendant occupy and the custom be find the court decree accord can the bill  be bring for tithe and the defendant plead a modus of twelvepence a acre for  land new convert to tillage and fourpence for ancient pasture there the court  be of opinion that the modus be well prove and order a case to be make for the  opinion of the judge who be of opinion that this be a void modus and certain  it be so for be couple with the twelvepence for the new convert ground it can  not be good but afterward mich wm and m Blaxton versus Langton the successor  of the plaintiff bring a bill for tithe in kind and the defendant insist on  the modus of fourpence a acre the plaintiff confess the custom but claim the  benefit of the former decree and declare that to be his only inducement for  bring his bill but the court declare it to be a good custom in the case of row  versus the bishop of Exeter a modus to pay twopence a hogshead for cyder be  establish in roll Abridg Cas Cas it be say the custom will have be good if it  have be to repair the chancel because that will have be a benefit to the  parson here the thing to be pay be certain and that be the certainty requisite  in a modus Kebl Cas a prohibition be refuse on suggestion of a modus to pay  four shilling for every day plough of wheat and two shilling for every day  plough of barley for the uncertainty but if the modus have be so much for  every day work with a averment that it be certain know and how much it contain  it will have have sufficient certainty mosely report Mr justice fortescue I  think there be no difficulty to determine this question whether these be legal  moduses or not and I be of opinion that they be first mosely report er p I  will observe on what moduses be find the book say they be real composition and  they be allow both by the canon and civil law and as they be find on agreement  they must be contain in some instrument and if it be lose the party be allow  to prescribe and this be the reason Lord chief justice holt go upon in the  case of startup and Doderidge though he be against the modus that as it be a  contract between the party it be hard to break through it when it be well  prove but the defendant say these moduses be unreasonable I have seldom know  this objection make to a modus because no body can tell at this distance of  time whether it be reasonable or not at its first commencement but the law  suppose it be Edward b but they be not unreasonable they be a ease to the  parson for he be not bind to attend foreigner but it be say that they take  more notice of foreigner than inhabitant but be it not in the power of the  parson patron and ordinary to give they what privilege they please they create  no burden on the inhabitant but it be object that they be uncertain and if  they be then indeed they be not good in point of law for they will amount to a  non decimando but can any case happen in which the parson will not either have  this modus or the tithe and there be no uncertainty but what be to be pay on  every contingency be fix in roll ab a modus to pay a shilling or thereabouts  for every acre of arable land be adjudge uncertain and as the custom be lie  with relation to the two parish they be a advantage to the rector and a  foreigner may come and reside in the parish and then he will pay tithe as well  as one who occupy land and be a parishioner may leave it here be no  uncertainty in the modus but the only thing uncertain be whether the modus or  tithe in kind be to be pay in this case the parson have a benefit he have  fourpence a acre and I do not know but once it may be a four part of the value  of the land the modus to repair the church in lieu of tithe can not be good  because the parishioner be bind to do it without such a modus and the do it be  no benefit to the parson but if it have be to repair the chancel it have be a  good modus for that will have be a advantage to the parson mosely report I can  rely on the case of bawdry and bushel it be determine on a motion and the  prohibition may be deny for other reason it be a strange resolution sure a man  may give up his right on what term he please and the reason mention in lev be  not good at law for it be a settle point that foreigner be bind to contribute  to the repair and vestment of the church and to pay all parish duty and Mr  Creuses case be express in point and in the case of bear and Howland decree in  the court of exchequer a modus to pay d a acre for high land and d a acre for  low land be adjudge a good modus Mr justice Reynolds a modus be a real  composition run into a prescription make to run together be who de ture to  seek again who may dispose of the right of the church as well as private  person of they and if these contract now appear in write they will be good and  the memorial be lose the party may prescribe and shall have the same advantage  of they as if the appear if these custom be universal they will undoubted be  good and then the question will be whether the restriction shall make they  void and if they will be good general shall the parson object when the  restriction be for his benefit and it can now be discover whether the parish  be not former unite or do not partake of sacramental but if these moduses be  so uncertain that the parson can know what to demand I allow they be bad all  the certainty requisite to a modus be this that when the circumstance be the  same there shall be the same modus and it be not uncertain because the parson  be now to have a modus and now to be pay tithe for that be as certain as the  case of non decimando where the parson have sometime tithe and sometime  nothing and this be no loss to the inhabitant they do not pay more though the  parson have less and the surplus be not throw as a load on their estate the  single authority for the defendant be the case of bawdry and bushel which be  determine on a sudden motion and no rule give to show cause and be find on  reason that be not law and though we have the contemporary report of siderfin  and Raymond they take no notice of that case and I believe the party have  recourse to another court that grant a prohibition because the custom have  subsist in that parish ever since notwithstanding the prohibition be deny and  that case ought not to be regard since it stand single in opposition to so  many contrary resolution both before and since that time many of which  authority have be cite by Mr Cresa mosely report er p mosely report Lord  chancellor I be of the same opinion the plaintiff have prove these moduses to  be time out of mind and the defendant have not produce a single instance of  the payment of tithe in kind and as they relate to so many parish it will  occasion great confusion to set they aside every modus suppose a composition  which be lose run into a prescription suppose the composition have be for all  occupier by the case that have be cite by Mr justice fortescue that will be  good and why shall it make the custom unreasonable to restrain it to those  that live out of the two parish do make the composition with part only of the  occupier make it illegal they may contract with who and on what term they  please and though Keeling in the case of bawdry versus bushel say there be no  precedent of such a modus Mr Cresa have produce two resolution before that  time but they not be in print I suppose he have not see they and that case be  adjudge on a sudden motion there be no uncertainty in these moduses for then  indeed no time or usage can make they good they be no more uncertain than the  prescription by the cistercians in non decimando do not the tithe alternate  belong to the rector or vicar as they be great or small tithe these custom  therefore be no way uncertain and have hold so long must be establish on the  original bill and the defendant cross bill must be dismiss Tuesday February  the that