case smith against wyatt and other at LincolnsInnHall July potato be only  small tithe whatever may be the quantity in which they be sow S c atk this be  a bill file by the plaintiff as impropriator against the defendant the vicar  of Westham for a account of the small tithe of that parish the case be this  the vicarage as well as the rectory former belong to the monastery of  Langthorn in the county of Essex the abbot and prior receive the tithe both  small and great and by way of stipend allow to the vicar the yearly sum of  thirtynine pound thirteen shilling and fourpence after the dissolution of this  monastery the appropriation devolve to the crown and his majesty king Charles  the first in the five year of his reign by letter patent grant the tithe of  hay corn wood et Decimus quascunque parcel guide de Westham to under who the  plaintiff claim about two year subsequent to this a grant be make by his say  majesty to the then vicar of Westham of all the small tithe belong to the  vicarage modern report er p upon that two question arise first whether by the  first grant make the vicarial tithe pass or not second if the defendant grant  be good whether potato be to be consider as small tithe it be in proof that no  less than two or three hundred acre have be some year sow with potato in that  parish and no tithe ever demand for they by watt the vicar or any of his  predecessor till a little time before fill the bill Mr clark as to the first  question insist that as the rectorial tithe together with the small one come  into the possession of the monastery they be thereby unite and afterward the  crown possess they in the same manner and that therefore by the word et  Decimus quascunque parcel guide all tithe pass for say he there can be no  tithe de jure due to the vicar for such must be either due by prescription or  endowment neither of which have be prove in the present case and that all the  tithe belong to the rectory must include all those tithe which the monastery  have enjoy with it which be both great and small one as to the second question  be argue that potato in the present case be vicarial tithe that tithe be  denominate great modern report or small accord to their value and that must  arise from their quantity that quantity have change a small tithe into a great  one and v ice line hop be in their nature a small tithe but be in ken and  where they be plant in great quantity esteem a great one sir Simon Deggs a  Degges parson counsellor a say all tithe of hop c be account inter minute  Decimus and yet in some case from their quantity be great tithe the like be  say of woad b udal v Tindall cro car b six acre out of twelve thousand be sow  with flax and the question be whether it be a great tithe chief justice holt  say that as it be sow in a field it be a great tithe but afterward the other  judge absent holt determine that flax be in its nature a small tithe c wharton  v Lisle lev Mod comb Carth skin salk Mod c and that it be not worth their  consideration in the present case whether it can be alter from quantity since  there be only twentysix acre of ground sow and that may belong to forty  different person pea and bean sow in garden be small tithe aliter in field d  Mod d Mr Floyer on the same side argue that the first grant of the five of  Charles the first of tithe of corn hay c passes all tithe appurtenant to the  advowson or rectory though by the Edward pl if the king grant a manor with its  appur tenances a advowson appendant do not pass and there be some other case  where thing will not pass in grant under the description of appurtenance yet  be say this differ from the present case and cite Plowden the case of i where  it be say that though the particular species be not mention in the grant yet  the I passes as to the second question be cite the case of alson v Nicholas  where it be say that pea sow in row and weed by the hand be small tithe but if  sow sparsim in field they be great one the attorneygeneral for the defendant  argue that the rectory and vicarage of Westham before it become part of the  monastery of Langthorn be a rectory and vicarage endow and though there be no  endowment produce yet there have be a immemorial usage and a continual payment  of the stipend to the vicar when the advowson at the dissolution of the  monastery become in the crown his then majesty make several grant for the term  of twentyone year of the vicarial as well as rectorial tithe and on the eleven  of June in the fourteenth year of Charles the first a lease be surrender by  one of the tenant of the crown and a grant be thereupon make to the modern  report vicar since which time the stipend have never be pay but the vicar have  enjoy all vicarial tithe except potato and never receive that tithe till now  the vicar be not only entitle by his grant to small tithe but by usage and now  the question be what be small tithe bishop Gibson say in his Codex that corn  grain bay and wood be great tithe Watson say modern report er p that tithe  have be general distinguish by their nature and not by their quantity and  therefore corn grain and hay because by their nature they be gather in large  quantity be call great tithe such thing as usual grow in garden by their  nature be usual gather in small quantity and from hence come that fix  denomination which be not to be vary from quantity or place of tithe grow in  garden and field in the case of the vicar of Fulham v the bishop of London and  other a in the exchequer Hilary term a a bill be bring for potato carrot bean  pea c the defendant insist that these tithe be in field c be not small tithe  and the court determine that they be small tithe except such which grow upon  the glebe land and the winter crop of turnip Trinity term Geo Willis v pain  and Underhill b corny Rep bunb b take from chief baron Comynss note it be true  some opinion have be that the distinction of tithe arise not from the nature  of the thing titheable but from the quantity but in wharton v Lisle c lev Mod  comb Carth skin salk Mod c the bench of justice be of a contrary opinion and  differ from holt chief justice he afterward so far yield to it as to be absent  when judgement be give which he never will have be have he continue of a  different opinion there the justice hold that quantity make no difference and  this say comens seem to be the most reasonable opinion because the quantity be  undeterminate it will create great controversy what shall be great and what  small Mr Murray read a note of baron price that hop have be determine to be a  small tithe Owen Hardwicke Lord chancellor if there have be no vicarage all  tithe have be grant but in this case there be one endow by which the vicarial  be separate from the rectorial tithe and therefore the grant make to the  plaintiff do not pass all tithe the abbot c be the appropriate rector and  vicar for a vicarage may be appropriate to a monastery as well as a rectory  cro James and composition be make between they and the vicar for a yearly  pension in recompense of tithe belong to the vicarage and such composition be  very frequent before the restrain statute when it come into the possession of  he crown there be lease make of the vicarial tithe which show it be a distinct  estate and separate from the rectorial so that you need not speak far to that  point modern report Mr Chute this tithe be to be determine by its nature or  quantity it be in its nature a small tithe and if quantity may make it  otherwise that may differ each year and so be a perpetual occasion of  controversy if corn be to be sow in a garden it will notwithstanding be a  great tithe so that place can alter the nature of the tithe pea and bean plant  in great quantity be consider as grain when in garden or small quantity they  be in the nature of herb the case of Bedingfield v freak a more Goldsb cro  Elizabeth a Mr brown tithe be small or great accord to their nature b see ware  v Britton cro James roll Rep palmer Rep Watson b the nature and not the value  make the tithe saffron be say to be a small tithe though of great value than  the corn in the same parish clover as it partake of the nature of hay be great  tithe if it grow for seed it be small tithe and therefore it do not take its  species from place turnip be sow in very great quantity and in field and yet  they be a small tithe Mr Browning argue ab inconsistency that tithe must be in  their nature small or great and not to be vary by quantity and place Mr Murray  read a note of chief baron Comynss in which it be say that where tithe be in  its nature small tithe it can be alter by the place of plant fetch and acorn  if not green be small tithe aliter great one Hardwicke Lord chancellor I be of  opinion that potato be in their nature small tithe and that they be not alter  by quantity or place the original this modern report er p tinction be from  quantity and the denomination still remain and can be vary as wood and corn c  be call great tithe because there be great quantity and so v ice line when new  thing be introduce it be consider what species of tithe they be most analogous  to and so be determine to be great or small tithe in the case of udall v  Tindall in hutton report c Hutton S c cro car c the point be not determine but  incidental say in the case of wharton v Lisle the question be whether flax be  great or small tithe and it seem to I that holt chief justice have acquiesce  with the three other judge in their opinion for if he have not the three other  judge will scarce have give their judgement in his absence and contrary to his  opinion upon the first hear as to the distinction of tithe grow in field and  garden that will be inconvenient for about London a great part of the land be  take into garden and it will be extraordinary that pea c sow in ten acre of  land call garden shall make it small tithe and that five acre in a field shall  make it a large tithe in Linton case garden pea modern report be plant in a  field and sow in row and they be hold small tithe if the rule be from quantity  it will produce great uncertainty for thing may vary by the extent of the  cultivation of they and what part of the parish sow must turn the small tithe  into great or v ice line the great tithe into small will be uncertain in a  parish chief graze and very little corn sow why by that reason will not the  corn be turn to a small tithe it may be say that change their manner of  cultivation may reduce rectory or vicarages to little or no value and it may  be so for tithe be a changeable transitory and fluctuate inheritance and in  their nature uncertain and it be a contingency that attend all thing of that  nature and that a purchaser must consider and whether the land be likely to  vary in its product or not admit the plaintiff will have make potato a great  tithe for the quantity of they he shall have show what proportion the ground  sow bear to the rest of the land in the parish the bill be dismiss