and Munson what shall be say to be a good modus canc this be a bill bring to  establish a modus the bill set forth that there be a custom in the parish of  burr that all person occupy pasture and meadow there shall be discharge of  tithe in kind by pay d a acre unless they be inhabitant of that parish or of  the parish of the plaintiff be occupier of pasture and meadow ground in this  parish but inhabitant in the parish of Wintthorp and whether this modus be  good or not be the question the defendant council object that the modus be  uncertain and entire depend upon the will of the occupier and beside they say  it be most unreasonable that foreigner shall be prefer before the inhabitant  they observe that it will great encourage a dispeople in the parish which be  of all thing to be discountenance and cite a case in lev which be report too  in Keble where this very point be determine and that between the same party in  interest as be at present but the attorney general and Mr will on the other  side argue that every modus suppose in itself a contract and therefore unless  this contract will be void though write evidence can be produce of it this  modus shall not neither though it carry with it only presumptive evidence of  there be such a contract now they observe this modus will undoubted have be  good if it have be general without distinction of person and how can the  defendant complain when the restriction that be introduce be mere for his  benefit they observe that however strong the authority of the case cite may be  there be other case of as great authority direct of the other side of the  question to this purpose Mr crew who be of the same side cite rot hill Ch in  the commonplea the case of big vicar of Eastwen against Luddel in the  exchequer which be Trin Ch mich will mary Blaxton and Langton in the same  court Mr will far urge too that if there shall be any fraud or collusion in  this case a court of equity will relieve as it do in all other and to this  purpose he apply two case in lev and more judge Reynolds and judge fortescue  assist the chancellor in determine this question they all unanimous agree that  modus be real composition by parson patron and ordinary the write evidence of  which be lose but the law presume Barnardiston king b there be such by the  long uninterrupted usage undoubted they say there will have be no dispute  about this modus if it have be without restriction and as the restriction be  for the benefit of the parson they think the restriction can make no  difference they all allow however that something must be due from the modus  and that too every year for as no prescription can be in a non decimand  general and at all time so neither can it be for so long a time as a year  together they seem to allow too that a modus will not be good where it depend  upon the will of the occupier whether it shall be more or less but here they  say the rule for the payment of this modus be as certain as the rule for  payment of any other modus possible can be the only variation be as to the  person pay the modus and that they say be never a objection the authority of  the case in Keeble they say be to be suspect or at least it be probable that a  prohibition be obtain in some other court otherwise it can be suppose that the  parson of this same parish will have content himself with receive the modus of  the outliers ever since that time which the case be report of accord the  chancellor be go to decree for the modus but though the proof be very clear to  support it he give the defendant counsel a day to talk with their client  whether they will have the modus try or not as it do concern the inheritance  note the court unanimous agree that the same land may at one time pay tithe in  kind at another time a modus where there be different circumstance the only  thing essential to a modus be that the same land shall not pay tithe in kind  and a modus both where there be the same circumstance