case grim against FAWLKINGHAM a modus for tithe of a water corn mill be not  destroy by add another pair of stone to it S c show S c Carth in a prohibition  to a libel in the spiritual court for the tithe of a water cornmill a modus be  suggest the defendant confess the modus as to part but say that there be all  addition to the ancient mill videlicet another pair of millstone your mill  ancient have but one pair of millstone but of late have two pair and so pray  that the prohibition may only go to the tithe of the ancient mill it be argue  that most mill of common right ought to pay tithe and that executor may be sue  for arrear of tithe of mill in the lifetime of the testator it be true no  tithe ought to be pay for fullingmill because the gain be uncertain and arise  by the labour of man Inst roll Abr pl b and therefore tithe in such case ought  not to be pay without a special custom to warrant it but only of thing  renovant on a prescription to a modus to pay so much every year in lieu of all  tithe issue out of two old house and mill it appear that afterward the owner  of the house build two new cornmill under the same roof and it be hold that  these new mill shall not be discharge of tithe by virtue of the old modus  because such tithe be not mere praedial but mask likewise and the miller ought  to pay the ten dish though it be say in the same book that tithe of paper and  full mill be personal e contra it be say that the modus extend as well to the  due millstone as to the old for if these break the modus go to the new so that  though they be lie down in any other place yet if they be under the same roof  the prescription will extend to all because the mill be the substance to which  it chief relate the prescription be to the mill in general and it be but  accidental whether there be one or two pair of stone therein it be still but  One molendinum and must be so demand in a praecipe modern in lutterel case   a  it be hold that if a man have estovers by prescription the alteration of the  room in his house or add new chimneys or room will not destroy the  prescription so if all old mill or house fall or be pull down the owner may  reedify upon the same foundation which be the perdurable modern er p part of  the estate and in judgement of law include the new as well as the old house  when stand a prohibition be grant the libel in the spiritual court be for  tithe of a watermill and of a windmill and on motion for a prohibition two  question arise first whether the modus for the watermill be destroy by the  addition of another pair of stone under the same roof and Carthew say the  court be of opinion that the modus be not thereby destroy SC Carth but see  Brownl and Com dig dime e and the case of Talbot v may Atkins contra the  second question be whether the tithe for the windmill ought to be praedial a  ten of the corn ground or personal a ten of the clear gain S c Carth and sir b  shower report holt chief justice to have be of opinion that the tithe ought to  be praedial for that a ten tolldish become Payable guide loci where the mill  be situate and not where the miller life S c show a prohibition however be  grant general on purpose that the point may receive a solemn determination but  it do not appear that the rector proceed to try the question the opinion of  holt chief justice that a cornmill shall pay the ten tolldish be confirm by  roll Abr by Warburton and Nichols justice roll Rep by price and Montague baron  bunb and by Lord Hardwicke Atkins but coke be of opinion the ten tolldish be  only due by custom Inst and in the case of Oliver v Dodson bunb bury and page  baron say that the tithe of a ancient cornmill be personal in the case of  chapman v Barton a case be adjourn into the court of exchequer to consider  whether the tithe of a water cornmill be a praedial or a personal tithe bunb  and in the case of chamberlain v Newt it be determine in the house of lord on  appeal from the court of exchequer and against several seem authority or doubt  in the book Eq Abr that the tithe of corn ground in a horse maltmill be a  personal tithe only that be to say a ten part of the clear profit arise from  corn ground in the mill over and above all incident charge S c brown case in  parliament S c viner Abr S c Eq Abr and on the authority of this decision it  be determine in the case of Carleton v Brightwell that a corn mill shall only  pay a personal tithe Peer wms and seem it be so determine in the subsequent  case of dovall v Lowther bar king b b michaelmas term the three of William and  mary in the king and queen bench sir John holt Knt chief justice sir William  dolben Knt sir William Gregory Knt sir Giles eyres Knt justice sir George  Treby Knt attorneygeneral sir John summer Knt solicitor general