case smith versus wyat July potato be sow in great quantity in a common field  the rector bring his bill for they as a great tithe Lord Hardwicke hold potato  be in their nature a small tithe the sow they in great quantity make no  alteration the bill be bring by the rector of a parish in Essex for the tithe  of potato sow in great quantity in the common field and therefore claim it as  a great tithe the defendant the vicar insist that notwithstanding it be sow in  field it still continue a small tithe and the quantity make no difference Mr  clark for the plaintiff cite Hutton cro car wharton versus Lisle atkins er p  in Mod lev and Carth and Deggs Pars Couns in order to show that the quantity  make a difference and that when potato be sow in garden it be a small tithe  but when in field a large tithe the case cite by the defendant counsel to  prove it a vicarial tithe be Parry versus the bishop oh London hill Wallis  versus pain et all February the attorney general say it will be a great  inconvenience to the people of England if the rule which they have lie down  for the plaintiff shall be establish that quantity will denominate it to be a  great tithe Lord chancellor the question be whether potato plant in field be  great or small tithe atkins potato in their nature be small tithe then the  question will be whether they receive any alteration of their right by  cultivate in great or small quantity when the distinction of great and small  tithe be at first settle probable it be upon this foundation that the former  yield tithe in great quantity and the species of tithe which be call small  produce but in small quantity though it may be arbitrary at first yet it have  grow into a rule and fix so for the sake of certainty nor be there any  authority cite where it be say to be determine that the rule of tithe shall  depend upon the quantity and not upon the nature in the case of udall and  Tindall cro car and in Hutton it be so lie down indeed but there be no  judicial determination and in wharton versus Lisle let and Mod ld Ch just holt  do hold that the tithe shall be determine whether great or small from their  quantity and not their nature but the judgement be contrary if this sort of  root shall be call small tithe when plant in garden and great when plant in  field it will introduce the utmost confusion and must vary in every year in  every parish if the quantity will turn small tithe into great why will it not  turn great tithe into small when the quantity of great tithe be but small a  objection have be make that if this rule shall hold it will put it in the  power of the occupier to change the property to which I answer so it will for  tithe be a fluctuate uncertain inheritance and depend upon the course of  husbandry for a man may turn arable into pasture and then the tithe be  agistment be become a small tithe from a great one therefore I think as there  be no judicial determination against this I be warrant in my opinion that the  tithe of potato be a small tithe and his lordship decree accord Reg lib b fol