But  the  most  material  circumstance  remains  still  to  be
stated: — In  the  year  1777,  Robert  Fairfax ,  the  then  re-
presentative of  Robert  Faiffax,  the  purchaser  in  1716,
and  the  Reverend  Guy  Fairfax,  the  then  minister,  exhibit-
ed their  bill  against  Christopher  Wright,  the  father,  I
believe,  of  one  of  the  present  defendants,  stating  the  same
case  as  is  stated  now,  and  praying  the  ssume  relief.  The
then  defendant  Wright  relied  upon  the  40/.  mentioned
in  the  terriers  as  a  modus.  He  averred,  that  there  were
several  ancient  farms  consisting  of  one  thousand  seven
hundred  and  thirty-four  acres  of  inclosure,  and  seventy-
two  acres  of  open  fields,  which^  with  two  farms  occupied
by  the  then  defendant,  had  paid  immemorially,  to  or  for
the  use  of  the  minister,  40/.  Os»  8d.  as  a  modus,  in  lieu
and  satisfaction  of  all  tithes  and  dues,  both  great  and  small.
He  did  not  point  at  the  distinction  now  taken.  There
were  witnesses  on  both  sides.  No  person  who  has  read
the  depositions  in  that  case  carefully,  will  dispute  my  ac-
curacy, ivhen  I  say  that  no  witness,  on  either  side,  sug-
gests the  distinction  now  made.  Every  one  of  them,  when
the  turn  of  the  expression  leads  them  to  specify  for  what
the  money  payments,  parcel  of  the  40L,  relied  upon  as  a
modus,  were  made,  invariably  state  it  was  for  all  the  tithes


101  EQUITY  CASES  IN  THE

1830.        of  farms  covered  by  the  payments,  that  is,  the  greater  part

Fairfax       ^^  ^^^  parish.  With  this  evidence  before  me,  it  is  difficult

V.  to  doubt,  that  the  opinion  now  relied  upon  has  grown  up

HOLDSWORTH.
since.
