care wallis vers pain and Underhill clover seed be a small tithe and as such  due to the vicar bunb S c a bill be exhibit in the exchequer by the plaintiff  who be tenant or farmer under the impropriator of the great tithe in the  parish of Prittlewell in the county of Essex and insist that the defendant sow  a field with clover which be cut for hay he let the aftermath grow for seed  which be cut and thrash for seed of which the plaintiff ought to have the  tithe as a great tithe the defendant pain insist that he be farmer of a farm  call Millton hall and that there be a modus to pay d a acre and ten bushel of  wheat to the vicar in lieu of all small tithe that he have pay to the  plaintiff for the tithe hay of comens his clover and that the aftermath of  clover stand for seed and be thrash for seed which be a small tithe and  Payable to the vicar and Mr Underhill the vicar insist upon the tithe of  clover seed as a vicarial or small tithe and by the deposition of several  witness it appear that the difference between clover out for hay and that cut  for seed be considerable and when make into hay it be cut while the grass be  green and fit for cattle to eat that when cut for seed it stand till the stalk  be fear and good for nothing but be throw out for stover or fodder and the  seed be the only thing of value or regard and that the tithe of clover seed  have be always pay to the vicar in that parish and look upon as a small tithe  that the impropriator have never receive it but once about five year ago when  the plaintiff take it from a woman in the parish but for twenty or thirty year  the defendant have receive it as small tithe and fifty year ago it have be pay  to or for the vicar indeed the vicar Mr Underhill for a great part of the time  he have be vicar hold the great tithe likewise it be argue by Mr Banbury and  Mr Bootle that clover seed be in the nature of a great tithe and due to the  plaintiff for as tithe hay be due to he the seed of that hay must of  consequence belong to he too that where the parson be entitle to tithe bay he  will be entitle to the hay make of clover as well as of other grass and if to  the hay likewise to the seed it be agree that they can not find that any case  have be in court wherein it be determine that clover seed be great tithe or  that it do belong to those who have the tithe of hay but two case be mention  one from Ch bar dod note and it be the case of Stanford and Hugh as cite in  the case of pocock and coal hill in these word arable land pay tithe to the  impropriator in kind sainfoin be sow upon the land and stand to seed and the  profit be in the seed and not in the stalk there be a custom of d per acre for  hay Payable to the vicar and it be resolve that notwithstanding the stalk and  seed be in the comens nature of corn yet it shall be look upon as grass and  Payable accord the other case be from Mr brown note in these word it be decree  that the aftermath of clover grass be titheable unless a modus can be prove  James brook and hall and hall and Babb be cite Trin in this case the Lord  chief baron cite the case of pomfret parson of Luton in Bedfordshire where it  be determine that the tithe of sainfoin shall be pay as grass and not as grain  though there be proof of thrash it and feed hog with it and make bread with it  and the vicar then have it this case of pomfret vers Launde and wait be find  Trin car S wherein Launde insist that sainfoin thrash be look upon as grain  and sow and often thrash as grain and that the tithe belong to the  impropriator and not the vicar as to this defendant the case be to be far hear  at the set down of cause that term when the court will further consider  whether he shall pay tithe of sainfoin to the impropriator or the vicar but no  such decree can be find and as to the other defendant wait the question be  determine on the stat h comens er p now by these case it appear that it be  think reasonable that the stalk and seed shall go together and consequent when  the impropriator be entitle to the stalk as he be when make into hay he ought  likewise to have the seed and it will be very inconvenient if it be otherwise  for the owner may shift his tithe to the parson or vicar as he please for when  it be first cub it be fit to be make into bay the tithe whereof will belong to  the parson but if he let it stand to dry that the seed may be ripen and fit to  thrash then the tithe will belong to the vicar and when shall it be say to be  dry enough for the vicar when it be first cut the tithe ought to be set out  and the parson will have it but after a while the vicar will claim t although  it be before vest in the parson comens on the other side it be insist by Mr  Floyer Mr Wilbraham and Mr starke that clover seed be in its nature a small  tithe at least it be a vicarial tithe due to the vicar in the present case  that there be not one case in point against it and tithe of no seed be ever  look on as a great tithe it be say that the stalk and seed shall go together  but it be frequent that the seed or fruit of tree go to the vicar when the  tree go to the parson wood be always reckon a great tithe and go to the rector  unless the vicar be special endow with ib but acorn as well as the fruit of  all other tree be always hold as small tithe but if the matter be doubtful in  this case it appear that it have always be pay to the vicar for thirty forty  or fifty year so that there be no pretence in this case to say that it do not  belong to the vicar but it be a new case and the court take time to consider  of it and afterward in the same term I deliver their opinion as follow  videlicet as this be a matter which may be considerable in its consequence in  relation to the quiet of poor vicar I consider two point first whether clover  seed be in its nature a small tithe so that it will belong to the vicar who be  endow de minute Decimus second whether if that be in any respect doubtful it  will not belong to the vicar under the circumstance of the present case and I  be of opinion that clover seed be in its nature a small tithe by the  constitution of Robert Winchelsea archbishop of Canterbury a uniform payment  of tithe comens be establish in the province of Canterbury to will quod no  de  frugib non deduct expen integre without diminution to loosen de produce  arborun de seed omnibus de herb horror nisi parishioner to make redemption pro  ankle Decimus where a manifest distinction be make between tithe de crops and  tithe de produce seed herb horror and line say f Decimus that tithe de crops  strict take mean such only who solent ligar but in a large sense they  comprehend not only tithe de grain pulse yes etian de vino wood ready for  felling Crete fodinis lapicidinis that be all such as common be repute great  tithe but speak of tithe de seed omnibus he say f de Decimus that they  comprehend all seed sive in plain sive in garden as smear milia canabi grana  porror cepar aromatic herb thing taken form stalk petrocilini drag off lettuce  aliar an herb and upon the word make redemption pro ankle Decimus he say tithe  de produce seminib herb who in fact Decimus into minute to sum up are for no   minute who to come forth de million mentha dill like and be take notice that  Hortiensis say quod in England to stand still minute no  in lana lino milk  cheese chastetree in birth of air darkgray cloth sheep Decimus horror no   etian honey wax to count inter minute so that by the commonlaw as long as the  distinction have be make between great and small tithe which be as ancient as  appropriation to religious house who usual engross the great but leave the  small tithe to the curate all seed have be reckon as small tithe the commonlaw  seem to follow the canon law in this point coke speak of tithe say quaedam are  mayor frument zizania fnum quaedam those inferior in rank sive minute who to  come forth ex mentha dill olerib like Inst and all the resolution relate to  tithe which proceed from thing new introduce into England have hold comens  they to be small tithe it be so resolve pasch Elizabeth n the case of  Bedingfield v feak gold S c a cro Elizabeth more S c Owen SC roll Abr comens  er p and in case the vicar sue the impropriator for the tithe of saffron in  the ecclesiastical court no prohibition shall go roll Abr so if the field be  former sow with corn and afterward be sow with saffron the tithe shall be pay  to t vicar for per Popham the tithe of saffron head be small tithe and though  the tithe of the field have be pay to the parson yet when convert to another  use whereof no grass tithe come the vicar shall have the tithe owe so in the  case of sir Richard Uvedall vers Tindall hut cro car S c the question be on a  special verdict if woad be small tithe or great and it be unanimous agree that  woad be small tithe for if no circumstance be to distinguish the case hemp  line saffron hop tobacco and all such new thing shall be minute no  so keb Mod  vent S c a side where a prohibition be pray to a suit by a vicar for tithe of  woad suggest it to be a great tithe the court doubt because it be reckon as  the book say inter minute Decimus as hop c so vent keb S c b side where on a  motion for a prohibition to a suit for tithe of hop it be say that hop woad  and such small thing of new invention be minute no  so pal palm cro James roll  Rep S c c in the case of ware and Britton the question be whether lamb be a  small or a great tithe Bridgman Ch I say minute no  comprehend only tithe of  garden hemp hop saffron c so in vent it be say that hop be of the nature of  small tithe comens so flax be resolve by three justice to be small tithe in  the case of wharton and Lisle comb Mod salk S c d lev Mod Carth skin so it be  hold in Noah web case car roll S it be true some opinion have be that small  tithe must be estimate not from the nature of the thing titheable but from the  quantity of the tithe and therefore it be say in uvedale and tindal case if  all the profit of a parish consist in such thing hemp hop wool lamb c may be  great tithe so in Gibs cod d edit p e cod Ju ecclesiastical it be say that hop  in garden be small in field great tithe and in the case of wharton and Lisle  holt Ch I at first seem of opinion that tithe must take the denomination of  small or great from the quantity of the crop grow but the three other justice  hold strong that tithe be great or small from the nature of the thing which  yield the loathe and holt yield to it so far that he absent himself when  judgement be give which he will scarce have do if he have be fix in the  contrary opinion and this seem the better opinion for it give foundation for  continual debate what shall be a quantity too large for small tithe if it be  say what grow in a garden some garden be not half a acre other two or three  acre garden be enlarge now a day to or acre in the case of smith v wyat report  in ache a bill be bring by the rector of a parish in Essex for the tithe of  potato sow in great quantity in the command field which he therefore claim as  a great tithe but Lord Hardwicke hold that potato be in their nature a small  tithe the sow they in great quantity can make no alteration perhaps that may  be a proper distinction as to pea bean or other pulse because they have  existence in former time and appropriation be make de grain pulse to religious  house but as to thing new introduce into England there be but little reason  that the patentee who claim only what come to the c own upon the dissolution  of monastery shall have tithe of those thing which be never appropriate and to  which the religious house dissolve never have a title as to clover seed there  do not appear any express determination in this court that it be in its own  nature a small tithe it be a seed and all seed be mention as comens small  tithe and no instance appear that ever any seed be hold to be a great tithe it  be a seed new introduce and therefore there be reason to look upon it to be of  the nature of those thing of a new invention which by the case cite have  always be hold as minute tithe it be true that clover grass make into hay be  of the nature of all other grass make into bay and consequent must belong to  the parson or other person who be entitle to tithe hay but it do not follow  when it stand for seed and be not make into bay that the seed may not be small  tithe wood be a great tithe butIt be necessary that the acorn shall be gather  and sell for if they drop of themselves from the tree in the season and the  owner cattle eat they in that case no tithe shall be pay of they light hetl  acorn mast c be small tithe roll Rep S c more a   a rape seed caraway seed  turnip seed mustard seed be small tithe but if the herb be grow with other  grass and make comens er p into hay it will be great tithe fetch be great  tithe if mow or cut when ripe but if cut green for cattle they be small tithe  so apple and other fruit be confess small tithe but the wood of apple tree and  other fruit tree if cut in a year when no tithe be pay of the fruit be as  other wood for fire great tithe but in the year when tithe be pay of the fruit  if then fall no tithe shall be pay of the wood the fruit be look on as the  principal and this may answer a objection that it will be in the power of the  occupier to make it great or small tithe and so favour the parson or vicar as  he please by cut it for bay or let it stand for seed it may as well be say  that a man may fall his apple tree the year he tithe the fruit or after to  prejudice or favour the parson the case mention from Mr dod and Mr brown note  be imperfect hint of those case I obtain a note of they from Ch bar ware be  note which be thus in the case of Stanford v Hugh pasch the question be  whether clover shall pay tithe as hay and shall be within a modus of d per  acre for all meadow comens and mow ground when the clover stand for seed and a  great quantity be produce note the court be divide Montague Ch baron and  Atkins hold that it shall be account hay Raymond before his removal and  Gregory be of the contrary opinion and afterward Weston incline to think that  it be not within the custom but the plaintiff the day after the term pray to  dismiss his bill without cost or prejudice which be admit in the case of  pomfret vers launder wait all July tithe of clover grass have be thrash and  make into horse bread and hog have be feed with the seed yet adjudge to be hay  and titheable to the vicar who be endow with hay and not to the impropriator  as a new and different tithe from hay in these case it appear that the dispute  be between the impropriator and the vicar who be endow with tithe of hay for  the seed of sainfoin or clover for in that the report differ the impropriator  insist it be of the nature of corn or grain and consequent belong to he in the  first case the court be divide in the second they incline to think that the  seed belong to the vicar so that as far as the authority of these case go the  tithe of the seed be decree to the vicar it be true that the vicar be endow of  the tithe of hay and the expression of some of the judge be that the seed  shall go with the stalk and shall be look upon as bay or grass but such  expression may well be use in favour of the vicar who be entitle to tithe hay  in opposition to the impropriators claim who will have it take to be of the  nature of corn because horse bread be make of it and hog feed with it and  therefore it will be too rigid a construction of those expression to say that  they import that the seed shall in all case be repute of the nature of grass  or hay since they be apparent different although in these particular instance  where the vicar have tithe hay they may be resemble to it since one as well as  the other belong to he the whole comens authority of these case amount to this  that sainfoin or clover seed be not of the nature of corn or grain in which  the court be divide in the first case the plaintiff find the inclination of  the court desire to dismiss his bill without cost which be admit in the second  case it appear not what determination be final make nor do it appear what  become of it in the entry of the deputy remembrancer whether it be proper  great or small tithe be not at all under the consideration of the court and by  the case before cite it seem most reasonable to account it of the nature of  small tithe but in the present case it seem most evident that it shall be so  take since by the deposition in the cause it appear that for or year in this  parish the vicar have receive the tithe of this seed and although the  impropriator have frequent hire the vicarial tithe yet it be rare if ever take  by he when he do not hold both and all the baron agree in opinion that the  plaintiff bill shall be dismiss with cost comens er p baron Parker seem to  doubt of the first point because of the expression in the case cite that the  seed and stalk shall go together it have also be decree since this case that  the seed of clover be a small tithe bunb comens de boundary pasch geo two