case chapman all versus Monson e contra Lord chancellor king mos Eq can ab pl  Fitzgib Barnard b r a modus that every occupier of land within the parish of a  live out of the parish shall pay a penny a acre for all pasture land within  the parish but if he life within the parish to pay tithe in kind a good modus  the plaintiff in the original bill be occupier of meadow and pasture ground  within the parish of burgh and Winthorp in the county of Lincoln but do not  inhabit within either of the say parish and they bring their bill on behalf of  themselves and other occupier of land and who do not inhabit within either of  these parish to establish a modus for tithe the modus as lie be that in the  two parish of burgh and Winthorp the bishop of Lincoln for the time be be  impropriator and that defendant Mr Monson lessee for three life under the  bishop the parish be near the sea and consist chief of marshlands and the  modus as to the parish of burgh be that every person not inhabit within the  parish of burgh and Winthorp occupy any meadow peer William and pasture land  within the parish of burgh have time out of mind pay to the appropriator of  the parish his farmer or tenant on every good Friday or as soon after as  demand the sum of d per acre every year as a modus in satisfaction for all  tithe and so proportionable for every great or lesser quantity and the same  custom different to move be lie for the occupier of meadow and pasture land  within the parish of Winthorp not inhabit within the parish of Winthorp or  burgh that they shall be privilege from pay of tithe in kind pay a modus of d  per acre for every acre of meadow or pasture within the say parish of Winthorp  and so in proportion for any great or lesser quantity the defendant Mr Monson  demurrer to the bill for that it appear on the face thereof that this be a  unreasonable modus as it favour foreigner not inhabitant within the parish  more than those who be inhabitant and bear the Chargeable and burdensome  office of the parish also because the modus be uncertain and not permanent and  in one year tithe may be pay and in the next a modus but in the three year  tithe in kind again for which be cite lev and keb bawdry v bushel where upon a  motion for a prohibition the whole court hold this to be a unreasonable modus  and particular in keb it be say to be a invention to cheat the parson Lord  chancellor take time till the next day to look into the book and then declare  peer William er p he do not approve of the reason give in levinz that the  inhabitant ought to be more favour in the modus than the foreigner in regard  the inhabitant peer William be liable to the repair and vestment of the church  whereas by the resolution in jeffery case go b a foreigner occupy land within  the parish though live out of the parish be liable to the repair and to be tax  even to the ornament of the church there be no reason but that as he be a  inhabitant in one respect he shall be so in all as to pay rate and tax and his  lordship call this a sudden opinion upon a motion and therefore will not allow  the demurrer afterward in hill term this cause come on to be hear Lord  chancellor desire to be assist by Mr justice Reynolds and Mr justice fortescue  who be present and the custom be declare by the court to be well prove the  only question be whether the modus be good in law against the modus it be  insist that as tithe be a revenue of common right belong to the church so  every custom derogate from this common right ought to be take strict that  accord to this custom if a inhabitant of the parish of burgh occupy land  within the parish shall leave the parish and take a house or even a lodging in  any neighbour parish except Winthorp this will entitle he to the advantage of  the modus so that a inhabitant by his own voluntary act and by so slight one  as go perhaps on the other side of the highway or hedge which possible may be  the boundary of the parish will be privilege from pay tithe in kind that  though it shall be admit a modus will be good that every inhabitant or  occupier of land within the parish though not a inhabitant shall pay d a acre  for every acre of pasture or meadow land within the parish yet peer William as  in the principal case for a modus to arise on so frivolous a account as that  of leave the parish and take a house or lodging in the next parish be  unreasonable but in the same manner as if there shall be a modus or custom  that if any inhabitant leave the town and continue to occupy land there he  shall be entitle to the benefit of a modus pure on the consideration of his  have leave the town which sure will not be good for the consideration to  entitle a parishioner to a modus must be something which be original at least  for the benefit of the parson and therefore a consideration that the  parishioner be to repair the church will not be good by if the modus be in  consideration of his repair the chancel or even the parson pew but the  parishioner leave the parish will be so far from be a benefit to the parson  that it will turn much to his disadvantage by deprive he of the personal and  small tithe that every modus for tithe if good must be suppose to have have a  reasonable commencement but what reasonable cause can be assign for the  commencement of this modus which so manifest favour mere stranger and  foreigner beyond the inhabitant of the place and which will tempt and  encourage every inhabitant to desert the town for the sake of that prevail  motive his own interest by which mean the parish may become desolate and the  parson have no parishioner leave to preach to again every modus in lieu of  tithe must be suppose to have commence original by the agreement and consent  of parson patron and ordinary but what can be imagine to have induce the  parson to consent and agree to such a modus by which he may be deprive of all  his parishioner in hope of get a exemption from payment of tithe also every  modus which conduce to fraud be a ill modus see Deggs peer William parson  counsellor cap where it be say the law so much abhor fraud in this respect as  to allow of nothing which may introduce it in leo Stebbs versus Goodlack the  parson of Letcome in Berks libel in the spiritual court against the defendant  for tithe of corn the defendant show a custom in Letcome that the parson as a  modus for the tithe of corn shall have the ten land sow with corn and shall  begin his reckon at the land which be next the church and so the next year at  the next land c and insist on this custody the parson thereupon show that the  defendant the farmer by fraud and corn every year sow the ten land very thin  with corn and never dung or manure it so that the other nine land each bring  forth every year thrice as much as the parson land wherefore in regard the  defendant have abuse the custom the parson sue for tithe in kind the farmer at  first get a prohibition on account of the custom but the parson afterward have  a consultation Wray chief justice say this custom be against common reason now  if this be so that a modus conduce to fraud be ill how can any modus be a  great inlet to fraud or more productive of it than it be where some of the  parishioner peer William er p will be continual leave the parish and take  lodging in the next to avoid pay tithe in kind and those who stay behind will  be continual impose on the parson by threaten to leave the parish if he do not  accept of half his due beside every modus in lieu of tithe ought to be certain  and permanent in salk archbishop of York versus duke of Newcastle it be say by  the judge though in other matter they differ that a modus must be a annual  profit both certain and permanent and the word inDeg be that every modus must  have peer William continuance and can be good at one time and sleep at another  that as reason be thus against the custom so there be two express authority  videlicet I lev and keb and though the reason in lev may go a little too far  in say the custom ought rather to favour the parishioner than foreigner by  reason that the parishioner be at the charge of repair the church whereas even  foreigner be liable to be tax for that purpose if they occupy land within the  parish yet so far it may be urge in favour of inhabitant beyond foreigner that  they be liable to burdensome office as churchwarden and overseer who by the  stat of Elizabeth be direct to be choose yearly out of the principal  inhabitant or if a occupier of land only be a inhabitant to all intent and  purpose then there will be no ground for the custom to make a distinction that  the custom say any person occupy land and not a inhabitant shall be entitle to  the benefit of the modus be uncertain as it do not say for how long time such  person shall not have inhabit within the parish whether for a week or a month  c also as every person occupy land who be not a inhabitant ought to pay d a  acre and so in proportion for any lesser quantity this it be observe be one  farthing for every sixteenth part of a acre but if it shall be but a  seventeenth part then it will amount to a custom in non decimand attorney  general contra as this modus have be uninterrupted time out of mind so there  may have be a purchaser of part of this land who have pay the dear for it from  a dependence upon the modus and consequent by set aside the modus the  purchaser will be injure there be no necessity that the modus shall be  permanent in godb brown peer William case a man have a modus kill for hay in  Blackacre he sow the say acre seven year together with corn yet this be hold  not to destroy the modus but that the same shall continue when the acre be  make into hay also it be there say that if the vicar be endow of tithe of hay  the same close when keep as meadow and mow shall pay tithe to the vicar and  when sow the corn shall pay tithe of corn to the parson by which case it  appear not to be necessary that the same land shall always pay a modus but may  sometime pay tithe in kind and sometime a modus and yet the modus subsist with  regard to the fraud object as incident to the modus in the principal case that  which every thing be liable to can be a good objection against a particular  thing for this fraud may be suggest in all modus particular in the case in  Godbolt the landowner may say to the parson if you will compound with I for  tithe I will sow the land else I will in it and use it for meadow and then you  the parson will not have the tithe but the vicar in the case of Coltford  versus pea cro Elizabeth a custom be that time out of mind every inhabitant of  sale who occupy pasture land in dale pay tithe for these pasture land to the  vicar of sale and that the vicar pay d for every acre to the parson of dale  the court hold this a good custom though it depend on the uncertainty of a  inhabitancy and that the vicar of sale pay d per acre to the parson of the  other parish for this pasture be the same thing as if this composition be pay  by the occupier of the land itself be equal beneficial to the parson then as  to the commencement of this modus the same may have be a reasonable one since  this parish of burgh have a great tract of land it may be for the good of the  land and of the parson to encourage foreigner to come peer William take and  manure this land by exempt they from pay of tithe in kind but still they be to  pay d per acre to the parson which be for the parson benefit as it may be  suppose that otherwise the land will have lie waste uncultivated and yield no  profit consequent no tithe at all the Lord chancellor and the two judge hold  this a good modus they admit that every modus must be certain and if it be  uncertain no length of time will make it good and as to a modus be void for  uncertainty Mr justice fortescue cite roll Abr where a prescription to pay a  penny or thereabouts for every acre of arable land be hold void for the  uncertainty but he also cite a case in the ex peer William er p chequer in  bear v Hodges bunb where there be a modus to pay d a acre for upland and d for  marshland and hold good but they all think the modus in the present case  certain d per acre for every acre of pasture and meadow ground occupy by those  that be not inhabitant within the parish in which case the parson have no  reason to object that the modus be not more extensive that it do not extend to  all the land in the parish whether occupy by inhabitant or by such as be not  inhabitant for that have be more to the prejudice of the parson who in the  present case have tithe in kind of the inhabitant for their land and as the  modus for pay d per acre for all the land in the parish whether occupy by the  inhabitant or not have be good a strong this be good because more beneficial  to the parson that this modus be certain because the parson be always sure of  have either his d per acre or what be better his tithe in kind but by the case  cite from Godbolt it appear not to be necessary that the modus shall every  year take place and here whenever it shall peer William happen that the  pasture or meadow land be occupy by foreigner then the modus will certain  arise and the same uncertainty may be object to the custom which say that  while the religious order or house hold the land in their own hand they shall  pay no tithe which notwithstanding have be always adjudge a good custom the  like answer may be give to the objection to that part of the custom where the  occupier of this land be not to be a inhabitant either of burgh or Winthorp  for if he be a inhabitant of either of those two parish he be to pay tithe in  kind which be still in favour of the parson the court admit that every modus  must be suppose to have have a reasonable commencement but as to the necessity  of show how that the modus be reasonable that seem not to be so clear for  these modus have be from time immemorial none can know but that there be such  circumstance in those ancient time as may have in make such a composition  reasonable though at present they in may not be discoverable that it be enough  to satisfy we at this time of day that the parson patron and ordinary before  the restrictive statute may bind the revenue of the parson and that all these  modus must have have their commencement from a instrument sign by the parson  patron and ordinary but there can be no colour to say that because such  instrument in so great a length of time have be lose therefore the modus shall  be lose also indeed so far the law go in favour of the church as that if the  instrument which the parson patron and ordinary have give to a layman owner of  such a farm to discharge the farm of all tithe though this will be good while  the instrument can be show shall be once peer William lose this be a privilege  in non decimand the privilege will be lose by the loss of the deed but that in  the present case there be no ground to insist on the custom be unreasonable  for the tithe be the reward for the trouble and care which the parson take of  the soul of his parishioner in which case the labourer be worthy of his hire  but then as the parson be not bind to go out of his parish to visit those who  only occupy land within the parish so it be but reasonable that they who have  not the benefit of the parson care shall answer the less duty to he and may  well be excuse for a modus of d a acre which the parson can say be too little  especial in this case when part of his proof be that a whole acre be let for d  or d a acre in the time of Edward the first and second a reason for avoid this  modus as be original too much as to the case in levinz that be observe to be a  sudden opinion of the judge upon a motion only and when perhaps only the  counsel that make the motion be hear and none of the other side neither be the  case mention in the other contemporary report as Raymond siderfin c also Mr  justice Reynolds ask with regard to the parish call Skegness concern the tithe  and modus whereof this motion be make in lev how the practice have be and  whether tithe in kind or a modus have be since pay it be answer that  notwithstanding that opinion this very modus have be observe and tithe in kind  not pay which show that no regard be have to the opinion and that the parson  be not advice to rely upon it last the chancellor and judge lie great weight  on four precedent in the exchequer cite by the counsel for the parishioner  where that court resolve such a custom and modus to be good and peer William  in some of these case condemned the parson in cost for contest the modus  particular brown entry be cite where the plead of one of those case be to be  find with a prohibition grant thereupon wherefore the whole court agree the  modus to be good time be give to the peer William er p bishop till the next  day to give his answer whether he will try the custom which the bishop decline  Lord chancellor establish the modus and dismiss Mr nonson crossbill for tithe  in kind without cost in case he submit to the modus it be sufficient in all  these case if the recompense to the parson in lieu of tithe be certain to a  common and reasonable intent Hardcastle v Smithson atk Bennet v pearl in  exchequer July report Gwill Anst n nomin Bennet v read see Williamson v Lord  Lonsdale price Blackburn v Jepson swan peer William de term S the number three  b b