case roger chamberlain and another appellant John newte respondent that  February the tithe of a horse maltmill be a personal tithe and the ten part of  the clear profit arise from corn ground in such mill over and above all  incidental charge be to be pay as the tithe thereof and the corn ground  therein be to be tithe by the ten tolldish decree of the court of exchequer  reverse see hall v machet Anst Eq can ab can viner vol p can Eq can ab can h  wood Exch Tithe cause I in view of the fact that tithe have by the tithe  commutation act be commute into a rentcharge the old division of tithe into  praedial mix and personal etcetera be not now of much importance the  respondent be rector and incumbent of the portion of Pitt and Tidcombe in the  borough and parish of Tiverton in the county of Devon and be entitle as such  to tithe of corn grain wood and all other great tithe about the year the mayor  and burgess of Tiverton erect a mill for grind malt by horse within one of the  say portion and on the that of may brown er p they demise the same to the  appellant for three year from midsummer then next at the rend of pound per  annum the lessee refuse to pay or compound with the respondent for any tithe  in respect of the malt ground at this mill he in Michaelmas term exhibit his  bill against they in the court of exchequer pray a account and satisfaction of  such tithe the defendant by their answer insist that no tithe be due but the  cause be hear on the that of April the court decree that the defendant shall  account with and satisfy and pay unto the plaintiff for the value of the ten  tolldish of all corn and grain ground at the say horse maltmill for the two  first year in the bill mention videlicet from the that of may to the that of  may and shall also pay the cost of the suit from this decree the defendant  appeal insist c Phipps that if any tithe be due for such maltmills it can be  only a personal tithe brown because there be in this case no natural increase  but only a profit arise from the invention of a machine and the labour of man  and horse and if personal the same by law can only be a ten of the net profit  after deduct all charge that if a personal tithe be due for such mill it be  only due in such place where personal tithe have be by custom pay for year  before the statute of Edward but no such custom be prove to be for such mill  in Tiverton on the contrary the appellant have prove that there be another  horse maltmill and several hand maltmills and many full mill of long stand and  yet no tithe be ever pay or demand for the same that the respondent have  charge by his bill that tithe for such mill be due by custom which the  appellant have deny by their answer and yet the respondent have prove no such  custom nor the value of the ten tolldish or any other toll to be take by the  appellant but only twopence per bushel for grind and therefore the decree be  not warrant by the proof and proceed in the cause that if the decree shall be  affirm it will sometime happen that the ten tolldish as decree will be the  whole of the proprietor gain consider the expense of erect and maintain this  mill and in this event also the same corn will against all law and reason pay  tithe twice for that all or the great part of such corn be grow within the  same parish and the ten thereof be pay to the respondent in the field and if  any be ground which grow elsewhere the same in like manner pay the ten to the  incumbent of the parish where it be grow and last this decree will introduce a  new sort of tithe and will affect great number of inhabitant in London and  elsewhere there be at least such mill use in the city of London and some  thousand of they in other part of the kingdom for which tithe be never pay or  demand but which if this decree shall be affirm must all pay tithe on the  other side it be contend I cheshire S Dodd that tithe be due both by the canon  and statute law for new erect mill by the canon law tithe be due for all mill  and by the statute of articuli allotment of land chap for new erect mill and  which statute express provide that no prohibition shall lie in such case that  there have from time to time be several resolution and decree for tithe of  mill and that the rest of the mill within the respondent portion have all  along pay tithe or a composition for the same and every modus for a mill prove  tithe to be due if they be not discharge by such modus that the tithe in  question be a praedial not a personal tithe and the ten tolldish be Payable  for the same and so agree both the canon law and the custom and usage of this  kingdom and that it be not a double tithe because it be pay by different  person and for different purpose in the first instance by the owner of the  corn and in the second by the owner of the mill after hear counsel on this  appeal it be order that the judge shall be hear to this point whether the  tithe brown Payable for corn ground in a horse malt mill be a personal  praedial or mix tithe and in what manner tithe be to be pay for corn ground in  such mill if any tithe be due for the same and upon due consideration of what  be offer by counsel and also upon hear the judge it be order and adjudge that  the decree complain of shall be reverse and that the plaintiff in the court  below John newte the now respondent shall recover his tithe of the say mill in  the nature of a personal tithe only that be to say the ten part of the clear  profit arise from corn ground in the say mill over and above all incidental  charge and to that end a account be to be take of the profit of the say mill  and charge for the time pass within the time of the demand of the plaintiff  John Newtes bill brown er p in the exchequer and since and that the say tithe  shall so continue to be pay for the future and it be order that the say court  of exchequer shall cause the say account to be take and what shall be find due  thereon pay accord jour vol p pole v gardener brown PC er report date case  John pole appellant Samuel gardener respondent that march a modus of d a acre  for low meadow and d a acre for high meadow in lieu of tithehay hold to be  good and the decree of the exchequer declare they to be composition and not  moduses reverse viner vol p can Eq can ab can h wood Exch tithe cause I see  note to case sup p the parish of Eckington in the county of Derby of which the  respondent and his father have be rector for upward of year consist of a town  call Killamarsh and of four quarter call by the name of Spinkhill Mosbrough  Eckington and Troway and for time immemorial there have be pay within this  parish certain yearly moduses rate or real composition in lieu of tithehay  videlicet d a acre for all low meadow and d a acre for all the high meadow  except in Troway quarter for every year that the same be respective mow for  hay and for Troway quarter several small sum for every farm amount to about S  the appellant be possess of land in the town of Killamarsh and in Spinkhill  quarter the respondent in Hilary term exhibit his bill against he in the court  of exchequer for a account and satisfaction of tithehay in kind to which the  defendant by his answer insist upon the say ancient moduses of d and d a acre  and that the same have be pay time out of mind in lieu of tithehay and so  accept by the plaintiff and all his predecessor rector of the say parish the  cause be at issue several witness be examine on both side and be hear on the d  of February the brown court take time to consider till the d of June when they  declare that the say payment of d and d a acre be no moduses but temporary  composition and the tithehay ought to be pay in kind for those land for which  the say composition be allege to be Payable and therefore decree the defendant  to account with and satisfy the plaintiff for his tithehay with cost from this  decree the defendant appeal insist S Cowper W Jessop that the moduses be good  in law have be inviolable observe and be fix and certain and what may be  permanent that there be not any rule in law to stint or limit the value of  moduses they be all original contract proceed from composition real which be  frequent make till the statute of Elizabeth which be above year after the time  of Richard I that the owner of a parish may have endow a church with more than  the value of the tithe if he have think fit or may have contract for twenty  time less than the value and in this and most other case a inviolable usage be  the sole evidence of right when by length of time no account of the reason or  beginning of the usage can be give and therefore it be call a prescription  that the reason give for make this decree be that the moduses in question be  too great or near the value of the tithe in kind for that in the time of king  Richard I which be account the time of memory d or d may be the value of the  inheritance of a acre of meadow but accord to this reason a farthing a acre  will scarce be judge a good modus although there be late judgement of the  court of exchequer which confirm d a acre for marsh land in ken and some which  allow d a acre in other place that it be evident both from reason and the  usage in the alienation office that in ancient time meadow land be of much  great value than of late year which be owe to the modern invention of improve  other land to bear hay that most parson quarrel with a modus of d or d for a  farm of pound or pound per and and by the unwariness of ignorant tenant in  make small alteration get they set aside so that within a few year pass more  moduses have be break than for many year before while very few have be  complain of which be half or brown er p near the value of the tithe but if  this decree stand several hundred of parish will be unhinged in all their  inviolable moduses and manner of tithing and a multiplicity of suit and  endless confusion will be create throughout the kingdom on the other side it  be contend S Dodd that tithehay in kind be to be pay to every rector of common  right unless some ancient modus be Payable in lieu thereof but that the sum  pretend to be moduses in this case can only be temporary agreement or  composition by reason of their largeness for in ancient time when moduses be  introduce the sum of d and d be of much great value than the hay of a whole  acre that brown there be several instance in proof in this cause both in the  time of the respondent and his predecessor when sometime the parishioner have  refuse to pay and at other time the incumbent have refuse to receive these sum  of d and d a acre and at all those time tithehay have be pay in kind that in  all the neighbour parish the rector usual compound with their parishioner for  the tithehay at the like rate of d and d a acre and yet they have the tithehay  pay they in kind whenever they think fit without any pretence that these  payment be moduses that consider so small a sum as eleven shilling be pay for  the tithehay at Troway quarter contain acre and so great a sum as d and d for  every acre of the other quarter of the parish no other reason can be give for  this difference but that one be a ancient modus and the other a late  composition but after hear counsel on this appeal it be order and adjudge that  the decree shall be reverse it appear to their lordship that the appellant  have prove the moduses insist on by his answer and that the respondent bill in  the court of exchequer shall stand dismiss but without pay any cost to the  appellant his solicitor and agent consent at the bar of the house to waive  such cost jour vol p