case robert austen and other appellant Matthew nicholas respondent that  January where the vicar be by endowment entitle to tithe of pea and bean set  and plant in row in gardenlike manner the use of a plough instead of a spade  make no difference a decree between other party may be read as a precedent but  not as evidence decree of the exchequer affirm see post can viner vol p can  vol p can p can Eq can ab can h wood Exch tithe cause two in the respondent be  induct into the vicarage of Shalford and chapelry of Bramley and thereby  become entitle to all tithe duty and profit belong to the same the appellant  Robert and Elizabeth Austen be seize in fee of the impropriation and the great  tithe of corn grain and hay and the other appellant be their tenant the  respondent as vicar be endow of the small tithe and have for a long time  receive a composition of S d per acre in lieu of the tithe of bean and pea set  and plant in row and rank that have be hoe and weed with the hand where brown  the ground have be turn with the spade although in the open field but where  the bean and pea have be set in row and rank and hoe and weed with the hand  where the ground have be turn only with the plough the tithe of such bean and  pea have be gather in kind by the impropriator or his farmer until about  thirty year before the commencement of this suit the ground in the parish be  usual prepare for bean pea and root with the plough and spade together and  while this method continue the impropriator never set up any right to these  tithe so that the same be enjoy by the vicar but the farmer and occupier of  some small parcel of land not considerable till about twenty year ago have  contrive a tin or iron plate to be annex to the plough the use of the spade be  omit and thereupon the impropriators or their tenant first set up a pretence  that thereby the tithe of bean and pea become great tithe and take the same  accord in Hilary term that Ann the respondent bring his bill in the exchequer  against one Elliot a farmer of the great tithe for the tithe of such ploughset  bean and pea and the court decree he to account for the same see h wood Exch  tithe cause I as also bunb Eq ab the respondent soon afterward bring another  bill in the same court against the appellant for the small tithe arise from  the glebe land and to confirm the former decree but pen this suit Elliot bring  his action of trover against the respondent for take the tithe of pea which be  set in row and rank and weed and hoe upon ground turn up with the plough and  upon the trial of that action wherein the value of the tithe be agree on the  only question be whether the tithe belong to the impropriator or vicar the  plaintiff obtain a verdict after this verdict the cause against the appellant  come on to be hear on the that of may when the baron have admit their decree  against Elliot to be read though he be no party to this suit nor be the  appellant party to that and reject the evidence verdict and judgement in the  action of trover affirm their former decree and order the appellant to account  with the respondent for the say small tithe from this decree the appellant  appeal insist n Lechmere S mead that there be in this case two contradictory  determination of the same question the one in a court of equity the other at  commonlaw that the determination at commonlaw ought to stand for that every  man freehold and inheritance ought to be try and determine at commonlaw or at  least that no decree ought to have be make without a second trial that the  court of exchequer by allow the former decree to be read as a authority in the  like case though not under the denomination of evidence do in brown er p  effect find a decree against the appellant on a proceed which ought not by law  any way to affect their right that by this mean all the tithe of wheat barley  etcetera brown may be turn into small tithe forasmuch as wheat and barley be  in many place sow in furrow after the plough and oftentimes hoe and weed with  the hand that the vicarage be never endow with small tithe arise upon the  glebe land nor have the vicar ever any possession of such tithe that this be a  new case and will in consequence affect all the impropriators in England for  that this sort of husbandry of plant pea in row and rank after the plough and  weed and hoe the same be find to be a great improvement of the crop that the  vicar have a right to pea plant in garden where the spade only be use to turn  the ground the same sort of husbandry be use in the open field and there be a  old custom in the parish to pay S d a acre for ground turn with the spade and  plant with any sort of root the vicar have accord receive such composition of  S d as well for pea as root and that it do not appear by any proof that the  vicar ever collect tithe in kind of pea plant after the spade but that on the  contrary only S d a acre have all along be pay he for all trench ground plant  whether with pea or root on the other side it be contend S Cowper r Raymond  that though vicar sometime for the ease of themselves and the parishioner  agree to take a composition yet it do not destroy the right they have to the  tithe either in kind or accord to a modus but the old right continue to take  the tithe accord to the ancient method of payment when the time for which the  composition be make be determine that the vicar have for time immemorial  receive the tithe of bean and pea plant and manage in gardenlike manner as  well after the plough as after the spade that the court of exchequer only read  the decree against Elliot by way of precedent and regard it as such as well as  other case cite out of the law book that it be impossible the tithe of wheat  barley etcetera shall ever be turn into small tithe by mean of this decree for  without a prescription no claim can be make of such tithe by a vicar let the  ground be prepare or turn or the seed sow or set in what manner soever that  where the vicar do so prescribe the disuse a single instrument and still  continue the same crop and manner of husbandry can not deprive he of that  prescription beside the respondent claim tithe of no other corn or grain set  in row or rank or otherwise sow in field but only of pea and bean which  plantation take its rise from the garden culture of such crop that upon hear  the cause the appellant can not make it appear that the land for which they  insist on a exemption of small tithe be glebeland or that as such or by any  other mean they be legal discharge of tithe to the vicar and therefore the  court decree they to pay tithe of such land that this be no new case there be  precedent of the like nature in the court of exchequer that without a  prescription the vicar can not claim see Gumley v burt bunb and post can of  this title see also Anstr brown and with it he be entitle to the improvement  but if emit a instrument in husbandry can defeat the prescription then the  right of all prescription be at a end accord after hear counsel on this appeal  it be order and adjudge that the same shall be dismiss and the decree therein  complain of affirm jour vol p