case wharton against lisle Hilary term will mary roll flax from its nature be  small tithe and therefore if twentysix acre out of five hundred acre in a  parish be sow with flax it shall not from its quantity be consider as great  tithe S c lev S c comb S c Carth S c skin S c salk S c Mod trover and  conversion for the take of twenty cartload of flax oat and wheat c upon not  guilty plead the jury find as to the oat and wheat not guilty and as to the  flax they find special videlicet that the plaintiff be impropriator of the  parishchurch of Thorp in the county of Essex and that all the great tithe  arise there have be usual pay to he that the defendant be vicar there and have  all the small tithe in the say parish that in the year there be six hundred  and fifty acre of arable land sow in the say parish with all sort of grain  whereof twenty acre be sow with flax that on the five of June in the three  year of William the three the land be so sow and the tithe set out the  defendant carry they away c the question be whether the tithe of flax be great  or small tithe modern Rotherham sergeant for the plaintiff argue that these be  great tithe at the commonlaw there be no such person know as a vicar the  parson have all the modern er p tithe vicarages begin in the reign of Henry  the three by a constitution of pope Urban the eight afterward the vicar become  spiritual person before the statute of Westminster the second Edward c see  Inst a a quare hinder will not lie for disturb a patron to present to a  vicarage and till the statute of Edward c a vicar can not maintain a law utrum  against the patron when he be entitle to tithe it must be by endowment or  prescription it can be by endowment in this case because the jury have not  find it so beside flax be not sow in England at the time when the first  statute Richard c Henry c b be make for endow of vicarages neither can this  vicar prescribe to have these tithe because the parson have they one year and  the vicar for seven year pass now admit that the tithe of flax be in  themselves minute no  yet when it be sow in great field and in large quantity  it lose that quality and savour of the nature of great tithe e contra flax be  a herb in its nature and so it be adjudge in Noah web case roll Abr c the  quantity of land on which it be sow can alter the nature of the thing either  to make it great or small tithe for if a whole field shall be sow with saffron  the tithe thereof will be but minute no  for it grow in the nature of a herb  and it be that which together with custom and usage and not by the husbandry  of the land make it small tithe cro car d dolben justice if wheat be sow in a  garden the parson shall have tithe and not the vicar and if flax be sow in a  field the vicar shall have the tithe because of the nature of the thing quod  to be deny per elsewhere for pea and bean when sow in a garden yield only  small tithe but when in large field it be otherwise and upon this difference  videlicet when a little land or great part of a parish be sow with thing of  this nature the tithe from thence arise be either great or small and it be  upon this reason that hop in ken have alter the quality of the thing because  they be plant there in great quantity afterward in Trinity term judgement be  give for the defendant by three judge absent holt chief justice who be of  opinion that the sow of flax in large field make the tithe thereof great tithe  by will c make perpetual by Geo c S all person who shall sow any hemp or flax  in any parish or place in England Wales or Berwick shall pay to the parson  vicar or impropriator of such parish or place yearly the sum of five shilling  and no more for each acre of hemp and flax so sow before the same be carry off  the ground and so proportionable for more or less ground so sow a