case John giffard appellant John web respondent that may in a suit by a rector  for the tithe of lamb the defendant insist on a modus of d for every lamb  Payable on saint mark day or so soon after as demand this modus be not void in  law but the validity of it shall be determine by a jury where a plaintiff  claim tithe in kind and the defendant set up a modus if the plaintiff decline  try the modus at law it shall be take against he pro acknowledged admitted  fact decree of the court of exchequer affirm see note to case sup p the  appellant be rector of the parish of Stoke next Guildford in the county of  Surrey and the respondent be a farmer and occupier of land in the same parish  in Michaelmas term the appellant exhibit a bill in the court of exchequer  against the respondent set forth that he be entitle to all the tithe arise in  the parish or to some recompense or satisfaction in lieu thereof and that the  respondent from the year to the time of exhibit the bill have occupy great  quantity of pasture land on which he keep great number of sheep from which he  have lamb yean the tithe whereof be demand by the bill the respondent by his  answer admit the appellant to be rector and that the respondent occupy a farm  and land in the parish consist of acre of meadow and acre of arable brown land  but no pasture ground except as his arable land come round in the course of  husbandry to be sow with grass seed when sow with summer corn he also admit  that about Michaelmas he buy a number of ewe with lamb and have from they a  great number of lamb which he sell but insist that the appellant be not  entitle to tithe in kind of lamb for that there have be the follow ancient  usage and custom approve within the parish videlicet that every occupier of  land and tenement within the say parish have a lamb or lamb yean within the  say parish ought and for time out of mind have use to pay the rector of the  say parish for the time be or his lessee for every lamb so yean within the say  parish the sum of threepence and no more as a modus and in lieu and full  satisfaction of the tithe of every such lamb and that the same be Payable  yearly on saint mark day or so soon after as demand and that the same have be  accept by the rector of the say rectory for the time be in lieu of the tithe  of lamb on the that of July the cause come on to be hear when it be among  other thing decree that it shall be refer to a trial at law to try the modus  as set forth and insist on by the defendant in his answer the then next lend  assize for the county of Surrey in a feign action and the usual direction be  give for that purpose this decree be make by two of the baron only and  therefore in order to have the opinion of the whole court the appellant by  petition allege that he conceive himself aggrieve by the say decree for that  admit the modus to be in fact as insist on yet that the same be void in law  and as such ought not be allow and to have a trial of that which in itself be  void in law will be fruitless and vain and therefore pray that the cause may  be reheard as to the demand of tithe lamb this petition be argue before all  the baron on the that of November and they be of opinion that the say modus  for tithe lamb be not a void modus in law refuse to grant a rehear on that  point but leave the appellant to try the modus at law if he think fit the  appellant decline to go to a trial pursuant to the say order it be on the that  of November order that the appellant shall show cause at the set down of cause  after Michaelmas term why the modus as insist on shall not be take pro  acknowledged admitted fact and no cause be show that order be on the that of  December follow make absolute and on the that of February it be order adjudge  and decree that so much of the appellant bill as relate to his demand of tithe  lamb in kind shall be dismiss with cost from these decree order and proceed  the present appeal be bring and on behalf of the appellant it be contend n  fazakerley c clarke that the issue to try the modus ought not to have be  direct before the objection to the validity brown er p and legality of the  modus be consider by the court because if the objection be brown allow there  have be no foundation to send such issue to be try and on the other hand if  such issue be try and a verdict obtain establish the fact of the modus and  afterward on hear the objection the court shall be of opinion that it be not a  good modus the party will then have be put to great charge and trouble to no  purpose it be however submit that after the issue be take pro acknowledged  admitted fact against the appellant the objection ought to have prevail and  the modus be set aside because a custom or usage to pay a sum of money in lieu  of tithe must be immemorial but if it can be show by evidence or from any  thing in the nature of the payment that it be not ancient and immemorial then  it be not a modus but only a composition which may bind the parson who make it  but can bind the successor without his consent it be well know that in ancient  time and long within the time of legal memory the price of cattle and all  other commodity be so much low than at present that a lamb which may now be  worth S d will not year ago have be worth more than d or in some such  proportion but in the present case the sum of d insist on to have be ancient  and immemorially pay in lieu of the tithe of every lamb which set the price of  every lamb at S d be so near the value of such tithe even at this day that it  prove itself to be a modern composition only and not a ancient customary  immemorial payment or modus and therefore ought not to bind the appellant who  have a right to his tithe in kind on the other side it be argue I will I  strange that the modus be a matter of fact if in any wise doubtful be proper  triable by a jury especial as the appellant at the hear of the cause refuse to  admit the fact of such modus and the court will not bar the appellant of his  right to tithe until the respondent have establish the fact of the modus he  have insist on in the most solemn manner by a trial at law as to the objection  that the modus upon the state of it be void and ought not to be allow and that  therefore the trial of such a issue will be vain and fruitless the ground of  that objection seem to be that the modus be so great and so near the value of  the tithable matter for which it be pay that it can not be presume to be well  establish as a modus or prescriptive payment but must be a modern composition  consider the decrease of the value of money for two or three century pass but  this objection arise upon a matter of fact be very proper to be consider by a  jury who will inquire as to the value of lamb in the place where this  controversy arise and therefore it be hope that the decree and order will be  affirm and the appeal dismiss with cost accord after hear counsel on this  appeal it be order and adjudge that the same shall be dismiss and the decree  and order therein complain of affirm jour vol p