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agreement, which was drawn and engrossed by appellant's own hand, reciting the said difference, and the bill and answer, and the exemplification; and that in order to put a stop to all further proceedings, it was agreed appellant should, as all his predecessors had done, give respondent and his heirs the same receipts for twenty shillings; and respondent thereby agreed to pay the appellant 10l. a year, as a voluntary offering, or free gift, every year at Easter, during the time he was vicar of Lenton, besides the twenty shillings a year; and thereby appellant agreed not to molest or disturb the respondent, or his heirs, by any further suit, process, or action, for any tythes whatsoever, respondent paying for the years last past according to that agreement; and that respondent had paid accordingly, notwithstanding which appellant, in Michaelmas, 1699, exhibited another bill against respondent, and twelve of his tenants, on pretence of injury to the church and him by that agreement; and that respondent, by his answer, insisted on the modus, and on appellant's agreement; and that Grangeleas was part of Handby demesne, and no part of the manor of Lavington, and that on the hearing appellant's bill was dismissed as to the tythes of Handby Grange, and an issue at law was directed, whether Grangeleas were part of Handby Grange or not? And that appellant had petitioned for a rehearing; and the cause was accordingly reheard, when the court declared that, as to the tythes of Handby Grange, appellant was not relievable against his own agreement, and that they adhered to their former judgment; and appellant, who was then present in Court, and refusing to go to trial, on the issue directed, and wholly waving the same, it was ordered that his bill should be absolutely dismissed with costs; but, without prejudice to the appellant's demands of 10l. per annum payable to him, according to the said agreement; and respondent insisted the decree of dismissal ought to be affirmed, as this cause had received a hearing and re-hearing, and appellant sought relief against an ancient modus, and his own agreement, and had waved the issue directed. (John Hawles.)

[186] Die Jovis, 19 Martii, 1701. After hearing council upon this appeal, it was ordered that the dismission or decree made in the Court of Exchequer, and the affirmation thereof, should be reversed; and the agreement complained of set aside: And, (Die Veneris, 27 Martii, 1702) that the Court of Exchequer should proceed to hear and determine the cause, as to the right of the tithes in question, notwithstanding the agreement. Lords Journ. vol. xvii. p. 76. 84. (This case is abridged in Vin. iv. 635. & said to have been cited in the case of Broderick v. Broderick, ib. 534.)

Note. The cause having come on accordingly to be heard in the Court of Exchequer, the Barons directed two issues at law; one to try the validity of the modus, and the other to try whether Grangeleas were parcel of Handby Grange or not? And from this last decree, the former appellant again appealed to the Lords; and by his petition shewed, that on the late hearing before the Barons, 6th July, 1702, his council had insisted on a decree for the tithes, for the time demanded by his bill but that the Barons had directed issues as aforesaid, which he insisted was erroneous; because the modus alleged was endeavoured to be maintained by great fraud and undue practices, in prejudice of the church, and contrary to a trial already had at law, and because this was a matter proper for relief in equity; and because the pretended modus was contradicted by respondents own proofs, he and his ancestors having paid above 10l. a year for near fifty years past, which and the agreement for 11l. pound a year (already annulled by the Lords) were inconsistent with the supposed modus; and because there was sufficient proof that Grangeleas was not part of Handby Grange; and that to send appellant to a trial in the country, would be to hazard the rights of the church, and to put him in worse condition than he was before the lords relieved him by reversing the former decree. (Samuel Dodd.)

The respondent on the other hand shewed, that on the last hearing in the Exchequer, appellant produced two terriers, which he would have read on the first hearing and re-hearing, on the deposition of Thomas Peachel, who had been examined after publication passed in the cause, both alleged to be had out of the registry of Lincoln, one dated 1577, the other 1634, of which respondent had no notice till the day before the first hearing, and also a pretended tithe book of Mr. [187] Loddington, a former vicar, not produced till the re-hearing, with several