case fox all versus aid all hear first by default July and also on defendant  show Cause the that of may Fitzgib Eq can ab pl a modus that in consideration  the parishioner make the tithe grass into hay therefore the parishioner  inhabitant with in the parish be to pay no tithe for the herbage of dry and  unprofitable cattle and though prove that the parishioner time out of mind  have pay no tithe of this herbage yet the court hold it to be a material  objection to the modus that foreigner live out of the parish make the tithe  grass into hand yet pay tithe herbage this be a bill bring to establish a  modus in favour of the inhabitant of the parish of Sturton in Nottinghamshire  the modus be in consideration that after the grass be cut the parishioner at  his own cost and charge do make the tithe grass into hay by strew the grass  upon the ground which be call tend of it and afterward gather it into week and  windrows therefore the person that inhabit within this parish which parish  appear to be the great part thereof meadow land be to pay no tithe for the  herbage of dry and unprofitable cattle peer William but though it be prove in  the cause that the parishioner have not time out of mind pay tithe for the  herbage of dry and unprofitable cattle yet there be no evidence that this  excuse for not pay of tithe be of herbage be in consideration of the  parishioner make tithe grass into hay on the other hand it be prove that  foreigner those who live out of the town make the tithe grass into hay as well  ac the inhabitant and yet pay tithe herbage also it be prove by the plaintiff  that the grass be tend and spread and not divide into heap and cock until the  same be make into hay that in this parish there be a vicar endow with the  small tithe the rectory a impropriation and that the vicar have pound per  annum out of it Lord chancellor saint this may be a good pier custom or modus  to excuse the occupier of the same land wherein the parishioner make grass  into hay from pay tithe for the afterherbage but it can be no good modus to  excuse the herbage tithe of other and land for that rate a man may mow and  make into hay only a small parcel of ground contain about a quarter or half a  acre of land and by this mean be excuse from the tithe herbage of head of  cattle dly it seem to I a material objection against the custom that foreigner  live out of the parish though they have no privilege of be tithe free as to  their herbage yet have make the tithe grass into hay which look as if it be  the usage of peer William that parish for the parishioner to make their grass  into hay of course dly it seem material what some of the witness have prove  that in this parish the parishioner when they cut down the grass do not divide  it into ten part until such time as they have make it into hay for of  consequence the parson can not have any opportunity of make his tithe grass  into hay himself but thly it be object that the consideration of make the  tithe grass into hay for the benefit of the rector can be no consideration as  to the vicar who lead to the small tithe of her age be entitle to the small  tithe of herbage Lord chancellor that be nothing for original and of common  right the parson be entitle to all the tithe as well small as great and the  modus suppose it to be a good one must have be time out of mind and consequent  must have begin while the parson be seize of the small as well as of the great  tithe and when afterward the vicarage be derive out of the parsonage and the  parson by consent of the patron and ordinary endow the vicar with these small  tithe this shall not prejudice the parishioner or deprive they of the benefit  of enjoy their modus which they before be entitle to Woodnoth v Lord Cobham  bunb Bennet v pearl in exchequer July Gwill Anst n nomin Bennet v read thly it  be object that the parishioner de jure ought to make the tithe grass into hay  peer William the Lord chancellor declare the law to be otherwise and interrupt  the peer William er p counsel when they begin to speak to this say that all  the parishioner be bind to do be to cut down the grass and divide it into tun  part after which the parson be to make it into hay and that this hadbeen so  resolve in a Devonshire case the case of one Reynolds however in regard  foreigner have meadow land in this parish make their tithe grass into hay as  well as the parishioner and yet pay tithe of the herbage and by reason of the  other objection above mention it will be too much in a court of equity to  establish this modus especial where it be insist upon as in this case that the  parishioner make tithe grass into hay do not only excuse the herbage of that  ground from tithe herbage but also all the tithe herbage that the parishioner  be to pay for any land he depastured within the parish though it may be a  great parcel of pasture land and though the same may be feed all the year  dismiss the bill with cost but without prejudice as to any litigation that may  be make touch the same at law Reg lib a fol see for this in Yelv cro James  green versus Austin but see also Bulst Wintall versus child and keb brown  versus Haywood contra see roll Abr accord but see also roll Rep contra and  note the tithe be call the tithe of hay and not of grass et vide burn Ecc law  to see Newman v Morgan east Halliwell v trap taunt