case the archbishop of york and doctor Hayter versus sir mile Stapleton and  other February a lessee of a rectory for three life who have make a derivative  lease bring a bill for tithe in kind and to establish a custom of set out corn  in stooks Lord Hardwicke hold the bill be proper bring though the tithe be out  in lease to prevent collusion between a lessee and occupier the archbishop of  York be entitle in jure church to the rectory of Mitton in Yorkshire and in  grant a lease for three life to archdeacon Hayter who make a derivative lease  to one tailor and this bill be bring by the archbishop and doctor Hayter for a  account of tithe in kind and to establish the custom of set out the corn in  stooks or stack it be object that there be no foundation for this bill because  doctor Hayter have make a lease to tailor be not entitle to any account and  can maintain a bill to establish a custom of set out in stooks or stack which  be a mere right Lord chancellor I be of opinion the bill to establish the  custom be well bring and that the person who be entitle to the inheritance be  proper make a party notwithstanding the tithe themselves be out in lease at  the time for which the account be pray for otherwise it may introduce great  inconvenience by a collusion between the lessee and the occupier and that a  bill may be even bring without pray a account to establish a mere right only  appear from the common case of bill for establish modus and therefore shall  direct a issue to try the custom of the stack or stooks atkins the course of  proceed in the court of exchequer be to decree a account of tithe from the  fill of the bill vide bell v read post vol but it will be time enough when the  cause come back after trial to search for precedent here in tithe bill though  I know the rule of this court in general be where a account be direct that it  shall be carry down even to the time of the master report and not to the fill  of the bill only the plaintiff can not proper amend his original bill by fill  new matter which have arise since the original bill but ought to have bring a  supplemental bill but then the defendant shall have take the advantage of this  defect in form b a demurrer and it be too late to make the objection after  they have answer next with regard to the matter of right as to land for which  a exemption be insist on against a demand for tithe in kind though the charge  in the bill be general yet in the answer you must show the exemption of the  particular close which be not do in this case the question of right be upon a  exemption claim of all the land that do belong to the monastery of saint mary  in the neighbourhood of York which be one of the great abbey dissolve by the  stat of h it be certain they be discharge in the hand of the crown and their  grantee in the same manner they be in the hand of the monastery at the time of  the dissolution but the evidence of this exemption depend upon usage now it  have be very right say that a posterior usage be evidence of the antecedent  and have be always allow so in case of this nature for what other evidence can  he have it have be object there have be unity of possession of the land and  the tithe in the Stapleton family and that occasion the obscurity and account  for the nonpayment of tithe but the ancient lease produce by the defendant  where there be a covenant that one of the ancestor of this family shall hold  tithe free be a answer to this objection the next question be as to the real  composition for main meadow of about acre in which it be insist five acre  calledtithe acre be set apart in lieu of tithe for the rest it be very natural  to think that the denomination of tithe acre arise first from those acre be  set apart from the rest in lieu of tithe and it be a strong circumstance in  favour of thedefendants to show that this meadow be exempt from tithe atkins  er p atkins it have be say and very right a modus to take part of the tithe  for the whole can never have be at any time a satisfaction for the whole and  have always be hold a void custom but in this case it be impossible to say  whether year ago five acre may be a sufficient composition for the ten part of  the whole and therefore the objection failsas to the inequality between five  acre and two hundred there be so many obscurity that the court can determine  clear without direct a trial at law for a jury will have much better  opportunity of unravel this difficulty from a view of the land themselves and  the boundary c will effectual quiet this question first issue as to the manner  and method of tithing second issue as to the exemption three issue as to  thereat composition