brown case jonathan tire appellant fillip walton respondent that may the tithe  of hop be to be set out by the ten measure after they be pick and not by the  ten hill as soon as the bane be sever from the ground decree of the exchequer  affirm see note to case sup p see knight v Halsey term Rep king b that even a  custom to set out the tithe of hop by the ten hill where the row be unequal  leave the bind uncut and the pole stand can be support semble see the several  case cite in that report burn Eccles law to edit vol p h wood Exch tithe cause  two the respondent be rector of Mickleham in Surrey and vicar of Dorking a  adjoin parish in the same county and as such become entitle among other tithe  to the tithe of all hop grow in the say parish the appellant occupy some hop  ground in both or one of the say parish and in the year be the first year the  respondent be entitle to receive tithe in the brown er p say parish the  appellant do not set forth such tithe but afterward pay the respondent twenty  guinea in lieu thereof the appellant constant every year afterward until the  year set forth the tithe of his hop in the same manner as the occupier of  other hop ground do videlicet by set out every ten measure after the hop be  pick from the bind or stem in the appellant have about ten acre of hop ground  in the parish of Mickleham and about eighteen acre and a half in the parish of  Dorking and have great quantity of hop grow thereon and before he gather they  cause application to be make to the respondent to accept a composition in lieu  of the tithe thereof but the appellant have previous declare that he will not  at all event pay above twenty shilling a acre for such composition the  respondent refuse to treat with he on that subject and thereupon the appellant  give the respondent notice that he will not set out the tithe as he have do  for several year precede but will set out every ten bill in his hop ground as  the tithe thereof by sever the bind or stem from the soil and leave the same  on the pole stand upon which the respondent tell the messenger that such  method be new and contrary to law and that he can not take his tithe in that  manner notwithstanding which the appellant soon afterward gather all his hop  except every ten hill which he leave ungathered accord to his notice and  refuse to set out the tithe of any part of the hop which he gather the  respondent have never before hear of or experience that method of set out the  tithe of hop and apprehend he have no right to take down the appellant hop  pole or to gather the hop leave thereon do not meddle therewith and be in hope  the appellant will alter his sentiment and in a brown amicable manner pay the  respondent for the tithe of the hop he have gather that year but instead  thereof in October follow the appellant commence a action at law against the  respondent for not take away the tithe hop so pretend to have be set out as  aforesaid the respondent be not only injure by the appellant not set out his  tithe but also harass by a action at law be oblige to have recourse to a court  of equity and accord in Michaelmas term file his bill in the court of  exchequer against the appellant for a account of his say hop and to be pay for  the tithe thereof the appellant put in his answer to this bill and thereby  admit that in the year he have hop grow in the parish of Mickleham and Dorking  and that he gather upward of six tun weight beside what he leave ungathered as  aforesaid but insist that he do not gather his say hop without true set forth  the tithe thereof but on the contrary do divide separate and set out the full  ten part thereof by set out every ten hill upon which the hop grow and by  sever all the bind or stem upon every such ten hill from the ground or soil  and by leave the hop upon the bind or stem on every such ten hill on the pole  stand and insist that that manner of set out the tithe be the only legal  method and that the tithe of hop ought not by law to be set out after the same  be pick from the bind or stem and deny that there be any custom in Mickleham  or Dorking for set out the tithe of hop grow there but the appellant have  likewise by his answer suggest that the respondent predecessor in the rectory  of Mickleham do at his own cost cause to be pick from the bind or stem the ten  of the hop grow in that parish or do satisfy the occupier of the hop ground  for pick the same and have likewise set forth several other matter relate to  the appellant pay for and set out his tithe of hop in the precede year and his  application to the respondent to take and accept of a composition for his  tithe of hop in the year the respondent reply to the answer and issue be join  several witness be examine on the that of February the cause come on to be  hear when the court be please to declare that the method of set out the tithe  of hop insist on by the appellant in his answer be no good set out of his  tithe of hop but that hop ought to be pick and gather from the bind before  they be titheable and decree that the appellant shall come to a account with  the respondent for the value of the appellant hop grow on his say land in the  say parish of Mickleham and Dorking from ladyday when gather and pick from the  bind and that the appellant shall satisfy and pay the respondent for the tithe  thereof accord the take of which account be thereby refer to the deputy  remembrancer of the court brown er p and it be further decree that the  appellant shall pay to the respondent brown his cost of the suit to that time  to be tax by the deputy remembrancer and that a injunction shall be award to  stay the appellant proceed at law and the consideration of future cost and all  further direction be reserve till after the come in of the deputy remembrancer  report the appellant apprehend himself aggrieve by this decree appeal from it  and on his behalf it be insist W Murray a Hume Campbell g hay g perrott S Cox  that there be no positive law to regulate the manner of tithing hop nor be it  fix by immemorial usage or custom that the determination of court relate  thereto have be various and that therefore that manner of tithing seem most  just and equitable which be both least prejudicial to the owner and most  beneficial to the parson or impropriator that the manner insist on by the  respondent by pick and then set out the tithe by admeasurement in basket be  prove to be so very detrimental to the planter that it must inevitable be the  ruin of the plantation of hop the cultivation whereof be of extensive benefit  to this kingdom but the method of set out the tithe of hop insist on by the  appellant be undeniable prove to be fair and equitable and not liable to any  fraud whatsoever whereas the other method be avow oppressive and injurious and  not productive of any benefit or preventive of any fraud it be therefore hope  that the decree will be reverse on the other side it be contend t clarke e  Sarkie that the set out the tithe of hop by measure after they be pick from  the bind or stem be the fair and most equal method and liable to the least  inconvenience whereas the method of tithing by every ten hill will be liable  to great fraud inasmuch as the planter will have a right to set out for tithe  every ten hill to be compute from the place he begin at and he may every year  determine before be manure his ground where he will begin to set out the tithe  and will thereby certain know every ten hill through the whole plantation and  may neglect to manure or improve the same equal with the other hill which will  be unjust and unreasonable beside this method of tithing will give occasion to  many dispute and controversy as the hop grow on one hill be natural apt to  intermix with the hop grow on the hill adjoin so that it be scarce possible to  sever the one from the other entire and the owner of tithe or his agent or  servant exercise the right of enter into the hop ground and pull up the  planter pole must frequent furnish matter for suit and vexation which will be  inconvenient both to the owner and the parishioner that the appellant have not  make the least proof that the tithe of hop be ever set out before they be pick  from the bind or stem or tithe by the ten hill but on the contrary in many  instance where the method of set out the tithe of hop have be dispute or bring  in question it have be uniform adjudge and determine after solemn argument  that the tithe of hop ought by law to be set out by measure after they be pick  from the bind brown or stem and therefore it be hope that the decree will be  affirm and the appeal dismiss with cost 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