case chapman all plaintiff the bishop of lincoln mounson and Dobbs defendant e  contra in court Lord chancellor Mr will for the plaintiff this bill be bring  by the plaintiff the occupier of several parcel of meadow and pasture ground  in the parish of burgh and Winthorp in the diocese of Lincoln against the  bishop of Lincoln who be seize in fee of the he propriate tithe Mr mounson  lessee of the bishop for three life and Mr Dobbs his under tenant for the  establishment of two moduses and Mr mounson file his cross bill to have tithe  pay to he in kind one modus be that it have be a custom time out of mind for  the occupier of land in burgh and who do not reside in burgh or Winthorp to  pay fourpence a acre for the tithe of hay and the herbage of pasture land not  plough or sow on good Friday or so soon after as demand the other modus be  that all those who occupy land in Winthorp and be not inhabitant of Winthorp  or burgh shall likewise pay fourpence a acre c and the plaintiff though they  occupy land in the parish of burgh and Winthorp yet they live in other parish  the modus do not relate to those that reside but to those that have land and  be not resident these two parish contain near eight thousand acre of land near  the sea and the inhabitant be not sufficient to cultivate and manure they so  these moduses be settle to encourage the inhabitant of the neighbour town to  occupy these land and they pay likewise and contribute to all the parish duty  and the same custom be observe in several adjoin parish we have prove a  payment of this modus for fifty year and that the parishioner who pay tithe in  kind on their removal to other parish have pay only this modus and the  defendant have not be able to prove that tithe in kind have be ever pay and  therefore as our evidence be sufficient we have a right to have these moduses  establish and if the defendant deny these moduses mosely report er p the court  will first enter into the proof of they and if they be not full satisfy with  the deposition mosely report will send they to a jury but if they insist that  they be not good in law they must admit they to be well prove and this be the  constant course in the court of exchequer and it be late so resolve in Quavuss  case to establish a modus for fish because they will not trouble themselves to  give their opinion on a uncertain fact Mr solicitor general for the defendant  we have two defence and if we prevail in either the court must decree for we  that there be no such moduses or if there be that they be not good in law but  they say if we controvert the legality we must admit the modus but the old  course of the exchequer be to consider the legality of the modus on a  supposition it be prove and not on a admission of it and why shall the court  put the party to the trouble and the expense of try a thing that be not  material by these moduses a difference be make between inhabitant and stranger  in a manner I never hear in case between resident and outdwellers the modus be  general in favour of the parishioner and what reason be there for these  moduses why must the first extend to all stranger but those that live in  Winthorp and the second to all but those that live in burgh and they can be  good in law because it will depend on the occupier whether he will pay tithe  in kind or not a man indeed by change the course of his husbandry may change  the nature of the tithe for he can be suppose to do it to defraud the rector  but it must be presume that every man will turn his land to the best advantage  but here though the land continue in the same plight and condition the tenant  by remove out of the parish have it in his power to alter the tithe and lev  bawdry against bushel a prohibition be move for on a suggestion of a custom  that all the occupier and tenant of Skegnes that be inhabitant of any place  out of the parish shall pay to the vicar only fourpence a year for every acre  and it be allege that the plaintiff occupy land in Skignes but live out of the  parish and the court deny the motion because the custom be unreasonable to  give a great privilege to foreigner than to inhabitant who be at a great  charge in respect to their resiance to repair and vestment for the church this  case be report likewise in keb Cas and it be there say per curian that this be  a unreasonable custom and only invent by the country to cheat the parson and  that it be a leap custom not fix to any person certain or to the land nor of  any permanence and by Keeling there be no precedent of any modus so variable  and dance and this case show the court on a supposal of the fact determine the  law before the modus have be prove and will not mosely report let they try the  modus because it be void in law these moduses be in favour of foreigner other  of inhabitant and will subject the rector to the great fraud they have prove  that they contribute as much as parishioner to the charge of the parish and  why then shall they be ease as to the tithe and it be unreasonable that by  their removal only the impropriator only shall be a loser Lord chancellor it  be contrary to the rule and method of all court to determine the law till the  fact be either admit or prove on a motion for a prohibition the court be not  possess of the cause which make the difference but if it be once grant the  defendant must either demurrer whereby he admit the modus or plead the general  issue and if the fact be find against he he have afterward the benefit of the  law the court therefore declare the plaintiff have prove the moduses to their  satisfaction but have a doubt whether they be good in law will be assist by  two judge on Monday next and defer give a opinion till that time post Cas  Thursday February the that motion