chapman v smith July modus doubtful modus not determine by a court of equity  without a trial at law see OConnor v cook Ves and Ves also Richard v Evans Ves  sen et supplement p a exception in the allege modus that it be not to be pay  when the land shall be plant with hop not fatal on the face of it in point of  law vide Ves Ves supplement the bill be bring by the rector of the parish of  altringham in ken for payment of tithe in kind for the land therein the  defence set up in the answer be a modus in this parish time out of mind that  all occupier in the marshlands in this parish have always pay or ought to pay  yearly to the rector d per acre and no more for every acre of marshland within  the say parish and the titheable place thereof in their respective possession  except when sow with corn grain flax or plant with hop as a modus and in lieu  of all tithe of hay and pasture and all small tithe except flax hemp and hop  and so after that rate for a great or less quantity than a acre of marshland  for plaintiff it be rest on the rector title for defendant it be argue that  this be a good modus and well lie and a case cite in exchequer in where a bill  be bring by Richard bear as rector of the parish of Warehorn the very next to  this parish for tithe in kind and a cross bill by sir Charles Sedley and other  inhabitant of that parish to establish a modus of one shilling for every acre  of marshland lie it exact as the present modus two issue be direct and upon  the equity reserve after that trial the modus be establish this be a precedent  both in law and equity show this as a modus well lie and that in a court where  these kind of bill be particular attend to and answer the objection of be too  rank this be lie only at d per acre in Evans v price and Richard October your  lordship hold that the rankness of a modus be not to be judge by a comparison  of the sum to the rend reserve on the land but to the value of the land and  that where it be necessary in point of proof the court will direct that matter  to be try but otherwise the court itself will judge of it these land lie in  Romney marsh to preserve which the owner be at a very great expense and  therefore it be probable that they make vesey senior this composition and then  the variation of the land be not a reason to say this be a rank modus for the  value of land depend on particular husbandry and be uncertain it be impossible  to say what the value of the land be at the time of this composition and  reasonable to think a proper valuation be then make and a proper reservation  the alteration in different time from the cheapness of money and value of land  will destroy all moduses of this kind in will this precedent in seem to be  cite by fortescue I and weight lie upon it as to its not be lie consistent and  impossible to be time immemorial because it except hop thing new introduce not  exist at the time this composition be suppose to be make no such objection be  take in that case in the exchequer and it be not probable it will have escape  that court if such have lie though the law have determine that hop be  introduce in queen Elizabeth time into this country they be probable know and  exist before though in small quantity the exception be introduce for benefit  of the rector who be suppose by the modus to receive the full value as tithe  in kind be then worth it be not material that all the witness do not call it a  modus for it may be lie as a sum annual pay without call it a modus and it be  hard to require exact precision in traditional evidence where the modus itself  be reasonable reasonable evidence be a ground for it there be no evidence of  payment of tithe in kind this rector and his predecessor have agree to this  modus for plaintiff the plaintiff need only show that he be rector which by  law entitle he prima fancy to all manner of tithe unless some legal bar be set  up which here be a modus but it be neither prove in fact nor good in law and  be contradict by record the difference to the plaintiff be whether he shall  receive the whole or half of his tithe if thing of this kind be not break in  upon the clergy revenue may be destroy by vesey senior er p composition it  depend on this whether it be such a modus as can have commencement beyond time  of memory or a modern composition within time of memory accord to Lord coke  definition a modus and composition be the same only that by length of time one  be run into something certain a absolute bar not to be break by either parson  or occupier a composition be such a agreement as since the disable statute  must be make by the parson alone and it may be and be in general a run  composition from year to year exact like lease from year to year so that on  either side if the composition be not intend to be continue you must give  notice at the beginning of a year and so of a lease a modus and composition  differ material in this that one be a certain payment beyond time of memory  the other equal certain but within memory the one may be break by the party  the other not vesey senior a modus may indeed cease and revive accord to the  different species of culture in which the land be employ and therefore where  it be set up that when sow with corn it shall be tithe in kind when turn into  hay it shall be satisfy by way of modus court of law and this court have hold  it may cease and revive and so far this modus be proper but the objection to  it be first it be rank and appear so large that it be impossible it can be  time out of mind the court will always destroy such a modus on the face of it  where it run high and go so near the value of the tithe in kind every modus  certain presume a original agreement before the disable statute by parson  patron and ordinary and since by parson alone that commencement then must be  presume consistent with right reason and the court will not presume that the  parishioner in who favour all these original contract between they and the  parson be make such composition as be of more value than the tithe the payment  must be always in money this be pasturetithe which be always pecuniary can be  specific and the only lith in the kingdom which be not specific it be not to  be conceive that d will be pay if the real tithe do not amount to half that  the value of a acre to support this as a reasonable composition at the time  must have be S d so high a modus create a strong presumption that it be make  not beyond time of memory the law fix that to a certain period in the time of  king b since who death it be above year this then must be presume a agreement  before that time to pay d per acre in fact in the time of king h these land be  value at S per acre as appear from several record particular from a survey  then take now produce out of the augmentationoffice how long this notion of  the rankness of a modus have prevail may not be know but in layfield rector of  Chiddingfold in Surrey v delap hill the defendant insist on a modus of d for a  lamb the court hold that be too much and can not be for that a lamb be not  worth S d in that country Lord raym show how far back the opinion in the  exchequer have go and a modus be hold too high by Powel I and several  afterward Benson v Watkins hill g bun franklin v Jenkins Trin g bun yet in or  thereabouts Giffard rector of Stoke in Surrey v web a modus of d for a lamb be  set up it be send by the baron carter and Thomson to be try and on appear that  decree be affirm it have indeed be say Lord Talbot be against that decree the  next objection and which destroy the modus on the face of it be from the  exception of tithe of hop which show it a composition the law take notice that  they be a modern invention come in queen Elizabeth time though perhaps they  exist before for there be a statute in the time of h prohibit they as a  venomous weed it can not then be a agreement time out of mind of which the  judge take notice and therefore prohibition be deny side Ven the exception  must be coeval vesey senior with the prescription which presume a agreement at  first by proper authority of patron rector and ordinary to take a pecuniary  payment in lieu of tithe in kind the exception must be take entire with the  modus for the court never sever a modus or consider one part as good and  another as bad hop be allege as part of the description it be thereby as much  felon de see as if lie particular and precise for hop which be never allow in  perch v gee hill accord to Lord chief baron dodd manuscript on a bill the  parish of in ken the question be in what manner whether a modus can be good of  the tithe of hop and it be hold not nor a modus extra to put down so afterward  in Connor v sprattling Trin because hop be new plantation there be but two  kind of tithe great and small the great be only four corn grain hay and wood  all the rest small and there can hardly be a new great tithe and it be now  determine full by your vesey senior er p lordship in the case of potato in  smith v Wyatt upon a precedent in the exchequer that great and small tithe  depend not on the value or quantity but on the nature of the thing and  therefore though the whole farm be turn into small tithe it will be still  small hay be a great tithe there have be a modern culture which make that hay  which not so former as foreign grass lucern c a modus for tithehay cover it  because it be the same sort of thing now a great difference have be make in  small tithe with regard to culture be former only use in garden yet if there  be a modus for all small tithe that prescription can be thereby overturn the  modus be applicable to whatever small tithe shall arise a modus in lieu of all  small tithe whatever will cover hop as well as other though you can prescribe  in lieu of hop particular hop will pass under a grant de minute Decimus a  ancient grant of all small tithe will now carry any new invent tithe in  franklin v Jenkins one point be whether a vicarage endow before time of memory  de minute Decimus be entitle to tithe of hop and so hold bun next how appear  it on the evidence the parole evidence to support it vary be inaccurate and  contradictory very few of the witness call it a modus they that do prove it  direct contrary to the lie it one call it a rate a rate and composition be the  same Lord Talbot have say if the witness will not call it a modus he will not  then as to the receipt or write evidence they be always express say to be for  a modus where there be one but these though vary in other respect be all for  the tithe and tithe and modus be opposite term the survey h read for the  plaintiff be the best evidence it be accurate and prove that the land in  Romney marsh be then only of the value of S per acre as to the precedent in  the exchequer it appear that court will have hold contrary if the same matter  have be lie before they as be vesey senior here until that time and late the  exchequer send issue to try a modus without first determine whether it be good  in law or not this court have bring they to alter that and also another  practice of take a account of tithe down to the time of the master report it  be there by page and Gilbert direct to be try though price hold it in point of  law a bad modus and it be try before Eyre I who this record in the time of h  be or read hold that the commission shall be produce and that if it be he will  certain overrule the modus it be now settle by all the judge that that be  wrong it be not necessary especial at this distance of time to produce the  commission and most of they be not in be your lordship have allow minister  account and a survey without produce the commission and it will be strange to  say the party be not to have the benefit of these survey because the  commission be not to be find upon the equity reserve where the validity of the  modus only be argue for the fact have be establish the court not only dismiss  the bill with cost as the plaintiff have fail on the trial and no motion for  new trial but also the crossbill with cost which be a odd determination decree  neither way they be not clear of opinion that it be a good modus on the face  of it but do not say it be bad the party plain do not look on it as determine  for they bring new bill afterward but the rector in his answer to the bill for  establishment of the modus not care to engage further agree to accept the  composition but not to establish the modus if then that have be a precedent in  this very parish it will not conclude his successor because it be collusion  but be in a different parish can be no precedent to a modus in another so that  as a precedent in fact it will not bind as a precedent in point of law it be  not determine and the opinion of Eyre I be that if that can be prove which be  prove here from the augmentation office he will overrule the modus Lord  chancellor upon the reason of the thing and the authority mention and other  which I will mention can determine this matter without a trial the court  certain ought to support the right of the church and not to allow any modus or  customary payment that by the rule of law be not to be support at the same  time the court ought not especial in case of very extensive consequence light  to overturn and overthrow customary payment that have prevail for a great  tract of year which be common call time out of mind or the memory of man  though I do not mean strict accord to the notion of law before the time of the  transportation of king b I take it that the question before the court in this  case be of very extensive consequence through a vesey senior great tract of  country it appear in this case and in former case in Westminster hall that it  extend and run through several parish in this country when therefore that be  the case and no instance or tradition vesey senior er p of payment of tithe in  kind in this parish for a great tract of year purchaser have come in and pay a  price for the land accord to those customary payment and it will vary and  alter the value of their property to overturn or overthrow they which be a  reason why these objection to they shall be very well weigh and consider and  that they shall not be too light overturn as have be do in some instance the  plaintiff upon his general right as rector be certain entitle to his demand of  tithe in kind of these land if no bar be show the defence insist upon be a  modus and undoubted as against the right of the rector it be incumbent on the  defendant to maintain that modus in point of law and fact there be two general  objection against allow this modus which be insist upon as sufficient to  overrule it now first that it be not sufficient prove in point of fact the  other that if it be so yet that it be not good in point of law which objection  in point of law divide itself into two objection the first a general one that  the affirmative part of the modus the payment of d per acre can have subsist  time out of mind of which the court be bind to take notice and that it can  have subsist time out of mind from the alteration of the value of money  because d per acre must be much above the value of the tithe of this land at  the time this modus or composition must be suppose to commence which the law  of England by a pretty extraordinary law and which I believe no other country  do make from the transportation of r I to the holy land the other be a  objection tend to the same thing that this modus can have subsist time out of  mind because there be a exception of a product and culture which be not and  can not be in use at the time when it be suppose to commence and that this  exception be part of the agreement must be coeval with the agreement itself  which show it can not be a agreement time of mind first as to the proof of the  modus in point of fact as to which many observation be make on the part of the  plaintiff and certain in case of this kind these observation have be frequent  make and have just have weight that there be a great variation in the proof  that none of the receipt call it a modus only two of the witness call it so  the other say there have be such payment for tithe general and one call it a  composition and Lord Talbot have say he will not call it a modus if none of  the wit vesey senior nesses will if not one that may be a material observation  but that I be of opinion be too slight a observation in general that because  these witness who be lie gens do not make use of a legal technical word that  customary payment shall be overrule the question be upon the fact the law make  the inference next that the receipt do not call it a modus and that they be  very nice in take receipt very often minister will not call it a modus in the  receipt because they will not prejudice their successor though they will give  a receipt for the sum as usual in very few instance will the rector submit to  call it a modus in the receipt and if he will not the parishioner can compel  he but must submit or else pay without a receipt and that sort of evidence be  in some measure strengthen by a letter of the plaintiff in which he do not and  very right call it a modus but insist on this payment as the payment usual  make for this land former and upon a account and payment to be make upon that  foot as the right he insist upon whereas he may have demand a account and  satisfaction for tithe in kind if this be not a composition or modus that bind  he but as to all these observation I shall have lie much more stress on they  if there be any evidence for the plaintiff either of actual payment of tithe  in kind or of a tradition thereof for this marsh land of which there be none  either of the fact of payment of tithe in kind or any tradition from any  ancient person which be proper evidence in case of custom and usage then the  positive proof on one side be strengthen by the weakness or want of positive  proof which imply a negative on the other side it be determine case not on the  merit but accord to the critical pen of deposition the want of any evidence  not only of payment of tithe in kind but of any tradition take off the weight  of the observation that this may have commence within a short space of time  for then some tradition will have be show that tithe in kind have be ever pay  or even insist upon or demand but there be none if therefore it rest on the  proof it be impossible to say that a decree must be make for payment of tithe  in kind which as at present I can allow but the most strong objection be those  in point of law arise from fact but vesey senior er p such fact as it be  insist upon the court be bind to take notice of first as to the exception of  hop which have something material in it for hop be always allow to have be  introduce in modern time that be modern in respect of long antiquity they  begin to be use and propagate in queen Elizabeth time and exist in this  kingdom in Philip and mary time and before as appear from the statute in the  reign of h therefore they be here but here as tobacco be here plant for  curiosity and in small quantity but they be in this kingdom to a certain  degree before Elizabeth time though non constat how far be it possible there  shall be such a exception in the beginning vesey senior or do the make this  exception overturn the affirmative part of the modus suppose the agreement be  to pay d per acre for all small tithe of this land except such small tithe as  shall be afterward introduce that will be certain a good agreement then  instead of lie it in those general word they have specify it with such a sort  of product as these land probable will be till with but it be too much to lie  such weight on this objection to overturn this modus when I see what have  already pass I allow that case of Bates in the exchequer not to be such a  authority be to bind in the present case and it seem a proceed as I ever see  in a court of equity issue be first direct on both bill and afterward the  trial be so have as not to determine the merit of the case which the court  expect after a trial but it go off upon a nice objection in point of evidence  that the plaintiff in the original bill offer a record or survey in the time  of h which now have be read and which be overrule by the judge and the merit  be not enter into evidence be not to be destroy because some part of it be  lose for the law be not so unreasonable as not to suffer it to be supply if  lose but upon its come back upon the equity reserve the court dismiss the bill  with cost in law and equity and dismiss the crossbill with cost only in equity  the reason of which be perhaps that there be no application by the plaintiff  Bates for a new trial and as a verdict be against he his bill be consequent to  be dismiss unless he pray a account on the foot of the modus which I presume  he do not think at   do and I presume the crossbill be dismiss because the  court do not think the verdict as find be upon the merit or sufficient to make  a decree to establish the modus but why it be dismiss with cost I do not know  unless the court have a mind to set the cost on one side against the other but  afterward a bill be bring by the landholder to establish this as a modus and  the defendant thereto by his answer say he acquiesce to take the payment on  that foot but do not consent it shall be establish yet the court do think fit  to establish it as a modus I believe I shall hardly have do that but however  it be only to establish it as between the then rector and parishioner for that  decree can not afterward bind all the subsequent incumbent because that must  be on a modus establish on proof and on the mere right of the case which be  not enter into modus must be prove as lie by plaintiff Durnf east the only use  therefore I can make of that precedent be this it be evidence to I of the  opinion of a very learned court when chief baron Pengelly who be a very  learned judge preside there that this insert the exception in the lie the  modus which be exact just the same as in the present case be not sufficient to  impeach and overturn the modus in point vesey senior of law and as that be a  very nice objection and may be account for indifferent way and there be that  opinion of that court I shall be of opinion not to overrule the modus upon  that the more material objection be upon the affirmative part of the modus  itself whether it be not too rank it be insist upon as too high in point of  value and therefore that the court be bind to take notice of it and ought to  overrule it Ves sen that doctrine have certain prevail in several case and I  believe more strong since the publication of bishop fleetwood book for before  that I believe these thing be not so common know that objection though find in  fact be take to be allow by the court without a jury that objection have be  more common allow as to the value of particular thing for which the modus have  be set up as where it be so much for a sheep or lamb or a particular kind of  product the value of which may be show at these time but it may differ as to a  modus set up as to the value of land because several incident and accident may  attend that the alteration of traffic or commerce or of the culture of land  either improve or fall in value by accident that make such a modus more  uncertain than in respect of the value of a particular kind of product as calf  sheep lamb and thing of that kind see vesey senior er p Richard v Evans Ves  sen and the reference Ves sen therefore though this objection be take in point  of law for the judgement of the court the court do not always proceed as bind  to determine it that way but have consider it as a matter of fact proper for a  jury and this plaintiff have consider it as such and have enter into proof of  the fact that be by record to show the value of the land in the time of h can  make a certain inference from thence it be a material evidence to be sure and  more light may have be have in that case of Warehorn if justice Eyre have let  that in but when such commissioner be ever employ to make this valuation I  believe this valuation be never carry to the height and that in the time of h  have be always think not to be carry to the height compare it with valuation  in modern time as on the augmentation of the queen bounty not value at a three  part and yet I believe they do not go strict than in that of h use this in  this manner not to throw it off only to show this be not conclusive evidence  then the question be whether it be not fit for I to do as the court of  exchequer do in the case of Warehorn to direct a issue and in that respect I  have direct a inquiry to be make into that case of the rector of Stoke which  be first in the exchequer where Giffard bring his bill for tithe in kind and  particular for tithe of lamb the defendant there insist that neither he nor  his predecessor be entitle to receive that because of a ancient usage or  custom in that parish that every occupier have land pay threepence and no more  as a modus in full satis vesey senior faction of the tithe of such lamb the  court do not determine it on the hear but direct a trial but the plaintiff do  not proceed to trial and the court order the issue to be take pro acknowledged  admitted fact and afterward order his bill to be dismiss from that he appeal  and the reason give for appeal as appear from the case be that the court ought  not to have direct a issue but shall have overrule this modus as too rank  because of the ancient price of cattle and other commodity so that a lamb will  not be worth former more than sixpence and that it be prove to be only a  modern composition the answer give to that be that the ground for that  objection seem to be that the modus be so great and so near the value of the  titheable matter for which pay that it must be a modern composition consider  the decrease of the value of coin but that this objection arise on matter of  fact be very proper to be consider by a jury it be hear in at which I be not  present be then in the king bench the lord affirm the decree and therefore  affirm that the send it to a issue be proper and right I send to Mr Philip  ware son of Lord chief baron ware and who be a very good repertory of case in  the exchequer to know what case upon this head have be in the exchequer and  the case of layfield v delap be send to I and also another which come up to  the present be very like it and in the same country of Grascomb v jefferies  Nov which be before of the case that have be cite upon this head and the  account of it be this it begin with say this be a Kentish cause and the  plaintiff demand tithe in kind for marshland the defendant allege a modus or  custom time out of mind to pay twelvepence per acre for all marshland within  the parish in lieu of all tithe proof be make of this payment for forty or  fifty year and upon this and as there be no proof of payment of tithe in kind  a trial be pray to be direct but the court deny the trial and declare the  pretend modus or custom to be void as it be prove that the marshland be rend  at so much per acre that it be not possible nor can a reasonable intendment be  make that the modus or custom time of mind can be and therefore the court  overrule the modus and say that the court usual overrule a modus which seem  too great and which do not seem reasonable to the value but notam and for this  I cite it this cause be reheard upon the defendant motion and the modus be  send to a trial at law by a Middlesex jury but it do not appear what be do  afterward the use I make of this case be to show that the take this sort of  objection find on the height of the sum to be a matter of fact in some case  for the consideration of a jury be not a new invention nor first introduce  vesey senior in that case of Giffard or that of bear but be do by the court in  on great consideration for it be twice before they on the first hear they be  of a contrary opinion and overrule the modus upon the argue it but upon rehear  and consider they reverse their own decree and direct a trial and I be of  opinion that in these kind of case it be very fit to do so and more so in a  case where it concern the height of a modus in respect of the value of land  than any other especial of land which have be great improve and improve for  several vesey senior er p year Romney marsh be the first level which be bank  in from the sea and the law of the sewer and more modern law have a reference  to that of Romney and make that the rule there be a possibility where land be  of little value at the time but be improve and enclose the parson patron and  ordinary may come to a agreement to give from that time much more than the  tithe be in order to prevent the parson demand tithe in kind afterward when  the land be great improve at their expense it be like the case where a  commonage be enclose at a great expense and much more be by agreement give to  the parson than his tithe in kind at the present because it be to prevent his  receive tithe accord to the improve value therefore I will direct it to be try  but the question be where it be to be try accord to Grascomb v jefferies it be  proper to try it in London or Middlesex Romney marsh be very extensive and  hardly a gentleman in ken who have not a estate there which I presume be the  reason of direct it in that manner in that case if I have not find this  precedent I probable shall not have think so ill of my countryman as to do it  let it be try in London upon a issue whether the occupier of the marshland in  this parish have pay c just as it be lie in the answer but the defendant in  this court must be plaintiff at law because the issue be upon he Reg lib a fol  the rector suffer the issue to be take against he pro acknowledged admitted  fact and the matter be compromise vide supplement p