a bill be exhibit to examine witness in perpetual re memory to prove a modus  kill the defendant demurrer for that the bill be to establish a custom against  the church and in prejudice of tithe that be due common jure and several  precedent be cite where bill to have a modus decree be upon demurrer dismiss  but this bill be only to preserve testimony the Lord keeper think it  reasonable the defendant shall answer and overrule the demurrer Trin Somerset  and Fotherby vern it be former doubt whether a bill in equity will lie to  establish a modus or customary manner of pay tithe especial if the custom have  not be find good at law and sometime on a demurrer to such bill they have be  dismiss but the constant practice now be to retain such bill and to decree on  the plead or to direct a particular point to be try at law concern the reality  of such a custom or the legality of it Chan Rep Chan can a bill be bring to  establish a modus or customary manner of payment of tithe which be thus that  every person not inhabit or reside within the parish have land meadow or  pasture ground have use to pay for every acre time out of mind on good Friday  d per acre and so in proportion for a great or lesser quantity than a acre to  the parson in lieu of tithe of those land but when the owner live or inhabit  within the parish then to pay tithe in kind of those land and the only  question be whether this be a good modus or not equity case abridge er p it be  insist upon for the parson that it be not a good modus for the uncertainty of  it and for that be cite and rely on a case in lev and the same case keb where  it be call a leap or a dance modus and there hold not to be good for that  reason for he may live in the parish today and remove out of it tomorrow and  how can the rector in a case of such uncertainty know how to make his demand  when it be in the power of the parishioner to defraud he thereof by go out or  come into the parish at his pleasure and it be the property of a modus that  the parson may as well know how to demand it as the tenant to pay it but here  it be whole in the power of the tenant to make it either a modus or Payable in  kind just as he please and if two shall agree thus you shall live in my house  within the parish and I in you out of the parish this will alter the tithe for  t time or if there shall be two joint lessee and one shall live in the parish  and the other out of the parish what be to be do in this case that tithe be of  the revenue of the church and any thing do in derogation thereof be to be take  strict equity case abridge that this modus be to arise by the Act of the party  and no modus can arise by the Act of the party but what be for the benefit of  the parson but here it be to arise by the Act of the party and yet be to the  prejudice of the parson for the difference between tithe in kind and this  modus be d per Ann roll Abr this modus tend to depopulate the parish so as  there may be none to preach to and all custom find in fraud be to be disallow  as Leon cro Elizabeth but on the other side it be argue that this be a good  modus that as on the one hand the parson be not to be defraud of his due so on  the other hand a modus be not to be overturn on slight ground that if they  shall purchaser may be affect who come in under a persuasion that such Moduses  be all they be to pay that it be not necessary to show upon what particular  reason every modus begin if it may be suppose to have a reasonable beginning  that this may begin when there be more land in the parish than the inhabitant  can manure and yet the owner of those land who live elsewhere shall be oblige  to pay d a acre for they though it be not necessary to show the reason on  which they begin that all Moduses may be say to be a invention to cheat the  parson and so in some book they be call as they be less than tithe in kind  that as to its be a leap or dance modus so be that of the cistercians and  other religious order who pay tithe of land Interrog  in not common with  others shades of dead to cultivate so tithe be Payable of hay while it  continue meadow but if break up the tithe thereof cease fill lie down again  and by godb it appear there to be in the power of the occupier to choose  whether to pay his tithe to the parson or vicar and yet hold good that this be  not such a new case as the other side will have it imagine for cro Elizabeth  be a case to this purpose though perhaps it may not occur at the time the case  in lev and keb come in question and that it be not so easy a matter to remove  out of a parish at pleasure nor be it to be suppose any one will do it mere to  cheat the parson and it be say in general that this modus be as certain and  permanent as most Moduses or even as tithe in kind which depend on the choice  of the owner whether he will plough his land for corn or mow it for hay and  here it be so far certain that the parson be every year secure of have either  tithe in kind or d per acre and if there be any fraud prove the parson will  notwithstanding recover tithe in kind as Leon and the case afore cite in lev  and keb be explode and deny to be law and the follow case in the exchequer be  quote as authority in point ashly and Pattison Trin car Ashford and Newcoven  Trin car Plaxton and Langston mich W m Reynolds and Appland about two year ago  and also more hob Cowper and Andrews and brown Ent the court hold it a good  modus and say that all Moduses be at first upon a agreement between the parson  patron and ordinary by some deed or instrument in write in the nature of a  contract equity case abridge or agreement which though now lose yet be run out  into a prescription continue good that here be no uncertainty in the modus for  the parson be always sure to have the d per acre or else the tithe in kind nor  be there any burden on the rest of the parishioner by one or two go out of the  parish and a leap or dance modus be where the modus itself vary and be  sometime more and sometime less which be not the present case and decree  accord equity case abridge er p