case John harrington and others Appellants thomas HORTON Respondent that  February in a suit for tithehay the defendant by their answer only set up  several moduses by the name of strew tithe a issue be in this case proper to  try whether the moduses insist on by the defendant in their answer have be  time out of mind pay and Payable for and in lieu of tithehay in kind decree of  the court of exchequer reverse the manor demesne land and parsonage of  Bedminster and redcliff in the county of Somerset have immemorially belong as  a corpse to the prebendary of the prebend of Bedminster and redcliff in the  cathedral church of Sarum and have be usual lease out for life be for above  year hold by sir Hugh smith Bart and his ancestor as lessee thereof who have  beside a very large estate of inheritance lie within this impropriation in  order to ground a exemption from the payment of tithehay in kind the smith  agree with their tenant to accept a yearly composition for the tithehay arise  out of their respective farm amount in the whole to pound S d Payable yearly  on good brown Friday but such of the land hold by those tenant as belong to  the prebend be not comprehend in this agreement and be therefore leave at  large to pay their tithehay in kind these composition be general pay for the  great part of the time that brown er p the smith enjoy the parsonage but there  be some time small variation in they at other time the tithe in kind be pay  and sometime money to the full value of the tithe on the death of sir Hugh  smith the respondent father be then prebendary of the prebend become seize of  the parsonage and in the year he grant the same to the respondent for three  life in easter term the respondent exhibit his bill in the court of exchequer  against sir John smith the son and heir of sir Hugh and also against the  appellant as his tenant for recovery of his tithehay and the arrear from the  time of his grant to this bill the appellant by their answer deny tithehay in  kind to be due and set up the several sum so Payable by composition as so many  moduses in lieu of the tithehay under the name of strewtithes but the  defendant sir John in his answer set forth a paper which he find among his  father write relate to the profit of the parsonage in which be the follow  article item there be a duty pay there in lieu of tithehay call strewtithe and  it be due upon good Friday for which there be extant a rental of the  particular which be to be pay out of every tenement and out of diverse  particular ground which if they that hold they refuse to pay then they must  pay tithehay and if it can be all gather it will come per annum to about pound  S but it be now hard to be gather on the d of June the cause come on to be  hear when the court decree the defendant the occupier to account with and  satisfy the plaintiff for the value of their tithehay and the arrear and the  usual direction be give for take such account but from this decree the  defendant appeal contend S Dodd c Cox that a issue ought first to have be  direct to try whether tithehay in kind be of right due or Payable within the  parish that the respondent father for twenty year and upward and sir Hugh  smith and his ancestor for above year before receive tithecorn and all other  tithe in the parish but forget for all that time to ask for so valuable a part  as the tithe of hay which if it have be real due seem very improbable and  scarce to be credit and though many debt at law be lose by length of time and  a demand be in most case necessary to preserve the right to a duty yet the  only foundation of this decree in equity be the length of time without any  demand so that the laches of the respondent ancestor which ought to be for the  advantage of the appellant turn out to their manifest prejudice brown on the  other side it be insist c Phipps that tithe in kind be due of common right and  that there be no proof in the cause sufficient to support the moduses as lie  in the answer for tithe in kind be prove to be pay for some of the land allege  to be cover by these moduses and as to other farm the customary payment be  prove to be different from those mention in the answer and some of the land be  destitute even of the pretence of a modus and as to the objection that there  ought to have be a trial at law it be answer that a court of equity do not  send any fact to be try at law but where it be render doubtful by a  contrariety of evidence but as the appellant have whole fail in prove their  moduses there be no foundation to send any one of they to such a trial but  after hear counsel on this appeal it be order and adjudge that the decree  complain of shall be so far reverse as that several issue shall be try in the  proper county at the next summer assize whether the several moduses insist on  by the defendant in the court below in their answer who be now appellant have  be time out of mind pay and Payable for and in lieu of tithehay in kind and  that the court of exchequer shall proceed upon the issue direct as shall be  just and if any difference shall arise between the party in settle the issue  it be order that they shall apply to Mr baron price to settle the issue so to  be try jour vol p brown er p