case butcher against hill in the exchequer saint June modus for ancient  orchard issue direct whether a modus like the above extend to modern orchard  and be so find and decree for account accord decree book Trinity term that Dec  pitcher v Hawkins bill by plaintiff and his beneficiary and trust Lord fane as  impropriator of the rectory of Bampton for tithe of apple and other fruit  except such as grow in ancient orchard for which plaintiff admit a modus the  defendant in his answer insist that the modus extend to modern as well as  ancient orchard the court decree a account of apple pear plum and other fruit  grow in the defendant orchard except such as grow in ancient orchard as to  which they be to pay one penny for each of their ancient orchard if the custom  be to pay a penny for every orchard it will extend to new as well as ancient  orchard Woolmertons case hetl S c e you see Smithson v Dodson Eq can Abr S c e  you Torriano v leg black S C e you in lie such a modus it be not necessary to  say that the orchard be ancient Blackburn v Jescop Ves S c Swanst Malcock v  browse post the answer state that some of the orchard be plant with fruit tree  beyond memory and some not but that defendant hope to make it appear there be  no distinction between ancient and new orchard and garden for they be advice a  verdict be give at the summer assize for Devon in in regard to the ambler er p  manner of tithing within say parish which will take away any distinction  therein whereby they be advice that as well new or modern orchard or garden as  the ancient one be cover and protect by a modus of one penny in full  satisfaction of all pear apple plumb hop herb root and cherry honey and wax of  be arise and renew in orchard and garden within say parish and that no tithe  in kind be due for same within the say parish order and decree by the court  that defendant do come to a account with and pay to say plaintiff for the  value of the tithe of apple pear plumb and all other fruit grow in their  respective orchard and garden during the time demand except the apple pear  plumb and all other fruit which grow in ancient orchard and garden as to which  the defendant be to satisfy and pay the modus of one penny for each of say  ancient orchard and garden in their occupation