atkins case Rotheram versus fanshaw march the last seal after Hilary term a  suit in the ecclesiastical court for substraction of tithe the defendant there  bring a bill to establish a modus and on the bare suggestion cf a modus move  for a injunction to stay the proceed in the ecclesiastical court the  injunction deny as it will be a precedent for trip up the heel of two court  the ecclesiastical and the court of commonlaw the defendant institute a suit  in the ecclesiastical court for substraction of tithe the defendant without  plead any discharge there bring his bill in this court to establish a modus  the answer to the bill do not admit it and the motion now be for a injunction  to stay the proceed in the ecclesiastical court upon the bare suggestion of a  modus by his bill Lord chancellor a injunction be pray on two head first on a  presumption from a constant nonpayment of tithe hay time immemorial there must  have be a alienation from the person under who the defendant claim though the  plaintiff be not able to produce the particular grant of those tithe to his  ancestor second upon a suggestion in the bill that there have be a modus or  composition constant pay in lieu of tithe if I shall grant this injunction I  shall make a precedent for trip up the heel of two court the ecclesiastical  court and a court of commonlaw the ecclesiastical court have a right to retain  suit for tithe whether at the instance of a spiritual person or lie  impropriator there may be a suit too in that court for a modus as well as for  tithe in kind the defendant likewise may plead a modus there if admit the  ecclesiastical court may go on upon the modus if deny the ecclesiastical court  can proceed near triationis diminution and if so it be the common suggestion  for a prohibition in the court of king bench but if you come there for a  prohibition you must first show the modus have be plead in the ecclesiastical  court and deny there No such thing have be show in this case but a bill be  bring to establish a modus and pray a injunction to stay proceed in the  ecclesiastical court upon the suggestion of a modus only atkins er p atkins I  can grant a injunction here but upon the same ground as a court of law will  grant a prohibition near triationis diminution injunction in this court be  grant upon a suggestion of something which affect the right or convenience of  the party in the proceed in the other court or where there be a concurrent  jurisdiction as in a suit for a legacy in the spiritual court where the party  can have the advantage of the discovery he want which he may have here then  this court will interfere as where a suit be institute in the spiritual court  for a infant legacy by a father his guardian to have it pay into the father  hand this court will not suffer such payment to be make but will grant a  injunction because it will not allow the money of a infant to come into the  father hand but do not grant a injunction because the spiritual court have not  a jurisdiction in legacy but from the general care it take of the interest of  infant vide anon atk the modus be not admit by the answer to the bill in this  court and if insufficient you may except to the answer and even if the suit go  on in the spiritual court and a sentence be pronounce for the tithe it be no  prejudice at all to the plaintiff in his suit depend here but if be to grant  this motion I shall take away the jurisdiction of the spiritual court on the  one hand and the court of commonlaw on the other as to the nonpayment of the  tithe hay it be insist the owner of the land be former a purchaser of the  tithe and have enjoy the land and tithe together for a great length of time  which be a presumptive evidence of his right but this be not a ground for a  injunction in a case of this nature a lie impropriator be to be sure different  from a spiritual in some respect since the deformation and the act for  dissolution of monastery tithe by grant from the crown be become lie fee so  that in fact lie imropriators have as much power to convey a portion of tithe  as any part of the land itself and therefore it be say it be hard the  plaintiff shall not in this case have the same advantage of presumptive  evidence from long possession in the case of tithe as well as in any other  case relate to a estate of inheritance and it be a say of Lord justice Yale he  will presume even a act if parliament make in favour of length of possession  but the court of exchequer in the case of the Aldermaen of bury versus Evans  Comynss Rep will not lie down a different rule as to the prescribe in non  atkins decimand in regard to lie impropriators and spiritual person but hold  such a prescription equal bad against both upon the whole I do not see there  be any reason at all for the injunction which be now move why do not the  plaintiff go upon the length of possession in the ecclesiastical court he may  have plead it there as well as insist upon it here in his bill and if the  ecclesiastical court will not determine upon the same evidence as a court of  commonlaw will have do it be the usual ground for a prohibition and no other  court have the cognizance of it but the court of king bench and therefore I  will not make such a precedent as by a sidewind will take away the  jurisdiction of both court at once Lord Hardwicke therefore deny the motion