case cart administrator of the late vicar of Hinckley versus ball and other  may SC Ves though this court do not take custom so strict certain as court of  law yet it require they to be substantial lie the bill be bring for a  substraction and account of tithe against the inhabitant and occupier of  Hinckley in Leicestershire the defendant insist upon a contributory modus of S  for the land which they hold of the hamlet of hide in the same parish the dean  and chapter of Westminster who be the rector do not in their answer disclaim  the right to the tithe but refer to their lessee who apprehend she have no  right and have never collect they Mr attorney general for the defendant he say  a vicar of common right be not entitle to tithe but by virtue of a endowment  or grant from those who be the owner of the land atkins a ancient payment for  tithe be a modus and suppose a agreement original Lord chancellor a general  charge of a endowment be sufficient to entitle the plaintiff to show a  endowment at the hear without mention the particular sort of endowment Mr  attorney general then go on and say the receipt run in this manner may receive  then of Robert ball the sum of eleven shilling and four penny for the tithe  due at ladyday for his part of the hide ground sign John par other receipt  call it the hide only Mr clark of the same side cite Hardcastle versus  Smithson July before Lord Hardwicke vide ante to show that the court will not  construe the modus with great nicety where it be in general proper set out by  the answer Mr Evans of the same side a rector have nothing to do but to make  out his title to the rectory and the tithe will be due of course to he but  otherwise as to a vicar there be no evidence arise from usage for the  plaintiff have not be able to show the tithe be even pay to the vicar that a  terrier neither here or at have be admit to be evidence of the vicar right  unless usage go along with it Mr solicitor general for the plaintiff say that  in the case of berry versus Evans Lord chief baron comens solemnly determine  that even against a lie impropriator you can prescribe in non decimand and in  extraparochial place the king be entitle and if it appear the rector be not  entitle the vicar must Lord chancellor this be a unusual demand as it be a  bill bring by a administrator of a vicar who be for year together vicar of  this parish and yet during all the time of his incumbency no tithe be pay nor  demand ever make but however if the right appear the plaintiff be entitle to a  decree his right depend on two question first whether as stand in the place of  the vicar he have show a right to the tithe in kind atkins second whether the  modus set up by the defendant answer be not a sufficient bar to that right I  will take up the second question first atkins er p I be of opinion the modus  as state in the answer of the defendant be not sufficient lie in point of law  it be more correct lie in the second answer and be lie there in the follow  manner seventeen shilling in the whole pay for the hide in lieu and  satisfaction of all tithe S and d for the part of hide in the occupation of  such a person S and d for the part in the occupation of another and S for the  part in the occupation of another two objection have be take by the plaintiff  counsel that it do not say the time when it be to be pay nor enumerate the  person by who it be to be pay as to the first in the court of exchequer if a  particular time be not lie that court former will have overrule the modus and  not go into the merit but latterly they have very proper let in a great  latitude of proof and it be sufficient if it be lie at a particular time or  thereabouts Richard v Evans Ves but the second be what I lie stress upon that  it be not say by who it be to be pay and I do not know any case in the book or  in experience where it be not allege to be pay by some body and it be very  reasonable it shall be say by who because the parson may then be sure to who  he must apply or against who he may have a remedy for his tithe this can be  supply by say that in other part of the answer they have show the seventeen  shilling have be pay by those person who have hold these land for that may be  accidental and though it have be say this court do not take custom so strict  certain as court of law yet this court require custom to be substantial lie if  before the court of exchequer where case of this kind be more frequent it will  have be overrule at once on the evidence to show there ever be such a entire  modus pay of seventeen shilling a year but the defendant add several modus  together and then by computation in arithmetic make just the sum of seventeen  shilling in some measure like the duke of grafton case of fine where by look  into atkins the lord book they find what be the large fine he take and charge  that sum to be the customary payment there be no evidence that these payment  be applicable to the modus and therefore I be of opinion it be not sufficient  make out upon the opinion I have give as to this part if the plaintiff have be  rector I shall have decree at once for he but a rector differ material from a  vicar a rector have and so have a lie impropriator a right to all the tithe in  the parish and have nothing to do but to prove himself rector chapman v smith  Ves ekins v dorm atk it be otherwise with regard to a vicar for he must show a  actual endowment or evidence of the usage in the first place there be no  evidence here of payment of tithe in kind which will be a much more material  consideration against a vicar than a rector whether the answer be so formal  draw as may be yet it be sufficient as to the denial of the plaintiff right  for though the defendant admit cart be vicar yet they say they do not know or  believe that he be entitle to the enclose ground of Hinckley and to all or any  part of the tithe so that by their answer they insist he be not entitle but  then it be argue for the plaintiff that the defendant set up a modus be a  implication that the vicar be entitle to tithe and to be sure it be but this  do not preclude the defendant from object to the plaintiff title and it will  be hard to preclude they because they fail in the defence they set up for  themselves suppose a plaintiff at law declare and the defendant plead a v  thing in bar which by presumption admit the demand whereupon the plaintiff  demurrer and the court hold the plea bad yet they will still see whether the  plaintiff in his declaration have make a case sufficient to entitle he to  recover the plaintiff be unfortunate for he preclude by the rule of this court  from read the evidence of the endowment which it be say will have put this  matter out of question atkins the abbot of liram in Normandy have send a  certificate of the original agreement between the rector and the vicar in  relation to the tithe but though it appear to come out of the abbot hand yet  as it do not appear that it come out of the charterhouse of the abbot or that  he be the proper officer to keep the record it can not be admit to be read  atkins er p Even before the reformation a certificate from a foreign abbey be  not allow vide Colegrave v juson atk therefore as the original deed relate to  the endowment can be read I must take it from the evidence before I which be  that no tithe have ever be pay to the vicar the terrier be very dark and I can  hardly make any judgement of they and it be very far from be clear from thence  that tithe in kind be ever pay to the vicar a vicar may not only be endow of  the tithe of a parish but of a pension likewise and therefore how can I  presume he be endow of the tithe when he may be endow of this annual payment  by way of pension if it depend upon this only I will inquire whether in any  case tithe have be decree in kind to a vicar where there be no evidence of  tithe have ever be pay to he in kind the dean and chapter the rector do not  disclaim their right to the tithe if they have it may have put a end to the  question in favour of the vicar this be the case I be not satisfy he be  entitle to the tithe in kind and therefore it must be put in a method of trial  it be say the rector ought to be party to the issue but it be not necessary  they shall for where a impropriators right do not come in question he need not  even be make a party to a bill that be bring for subtraction of tithe his  lordship direct a issue to try whether the vicar of Hinckley be entitle to  tithe in kind for the hamlet of hide in the parish of Hinckley