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made up, with an allowance of 4l. per cent. only, and that decree was affirmed, on a re-hearing in the last term, and which decree respondents insisted ought to be affirmed the Lords; because the appellant had, from time to time, received the [205] allowance of 4l. per cent. and given receipts for it, and had thereby excluded himself from demanding any other allowance: And that it did not appear by any proofs in the cause, that appellant ever made any application to the board, whilst his tobaccos were in being, for an inspection to be made of the waste and shrink age, in order to intitle himself to any greater allowance: And that appellant's tobaccos have been sold or exported, long before bis bill exhibited, and without his having desired the officers to view then, so that appellant had, by his own act and neglect, rendered it impossible for the King's officers to examine into the circumstances thereof: And that the act of the 7th and 8th of the late King, gave the allowance of 8l. per cent. for waste of tobacco consumed here, which were imported after 1st May, 1696, but did not any way concern tobaccos, imported before that day, as all the appellants tobaccos were. (Jo. Hawles. William Cowper.)

Die Lunæ, 20 Aprilis, 1702. After hearing council on this appeal, it was ordered, that the same should be dismissed, and the decree of the Court of Exchequer therein complained of affirmed. Lords Journ. vol xvii. p. 104.

The appellants stated, that respondents, as first and third rectors of Burford, in the county of Salop, in Michaelmas term, 1699, brought their bill in the Exchequer against appellants, for the tythes and customary payments within the township or manor of Whitton, as being one of the chappleries within the parish of Burford, belonging to the rectory: And that appellants, in Easter term, 1700, answered that appellant, Sir Francis Charlton, was lord of the manor, and the other appellants his tenants there; and that the manor consisted of demesne and ether freehold lands, called township lands: And that Sir Francis, and his ancestors had, immemorially paid the first and third rectors a modus of 7l. per annum. in discharge and satisfaction, for all tythes arising upon the demesne lands of the manor: And that the freeholders and tenants of the township lands, had immemorially paid them a modus of 5l. per annum. in discharge of the tythes of the township lands: And that after several witnesses examined, the cause was beard 5th February, 1701, when the Court adjudged against the modus's, and denied it to be tried at law, and decreed appellants to account for tythes in kind: Notwithstanding appellants had proved the modus's to have been paid for several generations without any variation; and also gave probable evidence, that tythes never had been paid in kind: And that though a witness examined for respondents had sworn that the parson, upon the death of one of the rectors, going about to know the value of the tythes, Sir Francis Charlton gave him an account of his cows, milk, eggs, and other tythes; yet appellants alleged, that it would appear on a trial at law, that this witness deserved no credit; and that respondents pretences, that appellant's father, Sir Job Charlton's cryer, was steward of his estate, and had made a composition for the tythes with the rectors: And that Sir Job Charlton had been a judge for many years, and his reputation and affection for the Church unquestionable; and that [207] he always declared, as his father before him had constantly done, the 7l. and 5l. to be the modus's, and never paid tythes in kind; and appellants insisted, that the decree tended to destroy ancient modus, and to subject the estate to tythes in kind, without any trial at law: And that the right of a modus, was properly triable at law, and such a trial rarely, if ever denied; and appellants alleged they would be able to prove it beyond contradiction on such trial; and that the decree ought to be reversed so far as to give appellants liberty to try the right at law.

The respondents in affirmative of the decree stated, that to the parish of Burford