a be rector of the portion of Pitt and tidcomb of the rectory and parish  church of t in Com Devon and a horse mill for the grind of malt be erect  within the say portion by the corporation of the say borough who in have lease  the same to the appellant for three year at pound per annum a prefer his bill  in chess and after time take to consider of it the court be unanimous of  opinion that tithe be due for this new erect mill and that such tithe be the  equity case abridge ten toll dish and decree the appellant to account with the  respondent accord and to pay cost April newte and chamberlain et all vin Abr  pl from this decree the defendant in chess appeal to the house of lord first  because the tithe of a horse maltmill be a personal tithe for there be no  natural increase from it but only a profit arise from the invention of a  machine and the labour of a man and horse and if it be personal the same can  only be for the ten of the neat profit deduct all charge second if a personal  tithe be due for such mill it be only due where personal tithe have be by  custom pay equity case abridge er p for forty year before the stat of Edward  three the appellant only take d per bushel for grind and the respondent do not  prove a custom nor the value of the ten toll dish nor any other toll to be  take by the appellant fourthly that the ten toll dish will be more sometime  than the whole proprietor gain consider the expense of erect and maintain this  mill five that the corn will pay tithe twice for that most of the corn that be  so ground be grow within the same parish and so the ten pay to the respondent  in the field and if any be ground that grow elsewhere the same do in like  manner pay the ten to the incumbent where it grow six this decree will produce  a new sort of tithe and will affect a great many people in London where there  be many such mill and some thousand of they be in other part of the kingdom  and if this decree be affirm they must all pay tithe on the respondent part it  be insist first that tithe be due both by the common and statute law for new  erect mill that tithe be by the canon due for all mill and by Art Cler c for  new erect mill which express provide that no prohibition shall lie in such a  case second that there have be from time to time several resolution and decree  for tithe of mill three that the rest of the mill within the respondent  portion have all along pay and do still pay tithe on a composition for the  same and every modus for a mill prove tithe to be due if they be not discharge  by such modus fourthly that it be praedial tithe and the ten toll dish Payable  for the same and so be both the canon and custom and usage of this kingdom  five that it be not a double tithe for it be pay by different person and for  different purpose videlicet in the first case by the owner of the corn and in  the second case by the owner of the mill this Cause be hear in dom proc Jan  and upon some debate the consideration of tithe praedial mix or personal be  due for such a mill and if any due in what manner Payable be refer to the  judge who after several adjournment attend the house Feb and all the judge of  b b and c b except Powel be of opinion unanimous that the tithe due for a new  erect malt mill be a personal tithe only and chief justice holt and chief  justice Trevor hold that there be no tithe due at all for such mill because a  personal tithe be due only where it have be pay within forty year before  accord to the stat Edward c S upon which the lord reverse the decree of the  exchequer but order that a do recover his tithe of the say mill in the nature  of a personal tithe only videlicet the ten part of the clear profit arise from  corn ground in the say mill over and above all incident charge and to that end  that a account be take of the profit of the say mill and charge for the time  pass within the time of the demand of a s bill in the exchequer and since and  that the say tithe do so continue to be pay for the future and also order that  the say court of exchequer do cause the say account to be take and what shall  be find due thereon pay accord ibidem will Rep Trin SC cite by the name of  chamberlain and Kneate in dom proc upon a appeal from a decree of the court of  exchequer where the bill be bring for the tithe of a malt mill in t in Devon  and where the lord determine with the assistance of eight judge whereof holt c  I be one that mill be tithable but that the same be a personal tithe and so  ought to be pay out of the clear gain after all manner of charge and expense  deduct upon this authority his honour in the case of Carleton and Brightwell  Trin decree a corn mill to pay tithe but that they shall be pay only as a  personal tithe ibidem I Vol Abr Eq can Newt and chamberlain SC but not so full  state as in Mr viner Abridgment Tithe for a malt mill be only personal for it  be not natural increase be only profit arise from the invention of a machine  and the labour of a man and horse and personal can only be for the tithe of  the neat profit deduct all charge Jan Chamberlayn and Plymton vin Abr title  dime m a in a note at the bottom of p bill into all for the tithe of a mill  adjourn to consider whether the tithe of a water corn mill be a praedial or a  personal tithe m chapman and Barlow in chess bunb Rep vide ibidem