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of inquiry in this case were outrageous, and on that account proper to be moderated in a Court of Equity, which judges secundum conscientiam et arbitrium boni viri; the Court of Chancery therefore could not, consistent with these principles, withhold its interposition, or refuse the relief prayed by the respondents under such peculiar circumstances. That the determination in the present case could not affect covenants in relation to ancient meadow or pasture, (though even on such covenants the same principles would attach, if the penalties were apparently excessive,) because the land ploughed here was not even of like nature or value. That the penalties insisted on by the appellant for ploughing Whinn-ground, instead of being beneficial to the estate, was a discouragement of agriculture in general; nor was such ploughing within the true intent and meaning, or equitable construction of the lease, according to its genuine sense, and the rule of sound interpretation; and consequently the decretal order made at the hearing of the cause, was no controul or change of the true stipulation and agreement entered into between the parties themselves; and ought therefore to be in all things affirmed.

But after hearing counsel on this appeal, it was ordered and adjudged, that the decree therein complained of should be reversed; and that the respondents hill should be dismissed. (MS. Jour. sub anno 1772. p. 104.)

There being a large, open, and uninclosed common, of about 300 acres, called Micklefenn, lying between, and extending itself into the several parishes of Kirby-cane, Stockton, Gelston, Ellingham, and other towns in the county of Norfolk; the inhabitants of the several parishes bordering upon this common, had, for time immemorial, and in order to prevent a multiplicity of suits, permitted a sort of inter-commoning between one another upon all parts of it; and accordingly their cattle were driven and fed thereon promiscuously.

This right of common was deemed to belong to the respective farms in each town, and taken to be a part of those farms; and the owners of the cattle so fed, always paid the tythes thereof to the parson of that parish in which their farms were situate; and these tythes of consequence became larger, by reason of the right or privilege of feeding upon this common.

The appellant rented one farm in the parish of Kirby-cane, and another in the parish of Stockton; and he constantly paid his full tythes to the respective Rectors of those parishes, without any abatement, in respect of his feeding his cattle upon the said common. The appellant also occupied five acres of meadow in the parish of Ellingham, for which there was payable a modus of 2d. an acre; and which had accordingly been paid or tendered to the respondent, as Rector of that parish.

But in Easter term 1707, the respondent thought proper to exhibit his bill in the Court of Exchequer against the appellant for the tythe-herbage of this meadowground, and also for the tythes of the feed of his cattle on the said common called Micklefenn, suggesting, that he, the plaintiff, was well entitled to those tythes. To this bill the defendant put in an answer, and thereby insisted on the modus of 2d. an acre for the meadow ground, which he was ready to pay; but as to the other demand, he stated,