brown case richard cook and another appellant thomas smee respondent that  November Mews dig v twelve the augmentation of a vicarage by a yearly payment  of corn and money out of the rectory be a charge upon the rectory impropriate  into who hand soever it shall come Where a vicar bring his bill for the arrear  of certain annual payment issue out of a impropriate rectory he shall recover  against the impropriator though a considerable time have elapse between the  commencement of the arrear and the impropriators possession but if pen such a  suit a man purchase the rectory with notice of the vicar claim he shall only  be liable for the arrear which accrue after he come into possession the church  and rectory of chishull great otherwise Upper chishull in the county of Essex  be ancient appropriate to the abbot and convent of the monastery of Walden in  the say county and by a instrument of endowment entitle a composition make  between the say abbot and convent and the vicar of chishull aforesaid date the  that of may in the that year of the consecration of Roger then bishop of  London which be in the year of our Lord the bishop after recite that he have  admit Richard of burden to be vicar of the say church of chishull great at the  presentation of the abbot and convent of Walden aforesaid ordain that he the  say vicar as or by the name of the vicar shall receive all small tithe and  ablations and the tithe of hay and some other tithe therein mention and shall  also receive four quarter of wheat four quarter of barley and four quarter of  oat out of the barn of the monk of Walden aforesaid afterward by a instrument  of augmentation date the saint of December under the seal of Robert then  bishop of London and of the abbot and convent of Walden recite that the then  vicar of chishull great have complain to the bishop that the profit and income  of the say vicarage be then so small that the same be not sufficient to  support himself and sustain the burden of the say vicarage and that he the  bishop have issue out a commission to inquire into the truth thereof and also  of the value of the revenue of the say abbot and convent and that by a  inquisition take thereupon the income of the say vicarage be find not to  exceed the yearly value of pound S one year with another the bishop therefore  upon due consideration have of the premise plain find that the say vicarage be  so diminish and small in its income that the vicar thereof without a competent  augmentation can not reside there nor perform the necessary duty belong to the  say vicarage and the bishop out of his pastoral care have call before he the  say vicar and abbot and convent who judicial appear the bishop do with the  consent of all party concern by a definitive sentence and by the say  instrument ordain and decree that the say abbot and convent and their  successor brown er p shall pay out of the tithe and brown fruit belong to the  say abbot and convent in the name of the say church by the hand of their  farmer or of whatever occupier there shall be of the same for the time be four  mark of English money yearly to the then vicar for his life and shall  afterward pay to every of his successor vicar of the say vicarage the yearly  sum of S for ever in augmentation of the aid vicarage at the several time  therein mention and the bishop do thereby adjudge and order the say abbot and  convent and their successor and all and every other person and person who  shall become possessor of the say church and rectory to pay the same for ever  and do thereby charge the payment thereof on the tithe belong to the say abbot  and convent as aforesaid accord for ever and that the say vicar and his  successor shall enjoy all the tithe and profit which they former use to  receive together with the money decree to they by the say definitive sentence  and instrument upon the dissolution of monastery in the reign of king Henry  VIII the say abbey or monastery of Walden and the land tithe and possession  thereof be seize into the hand of the crown and afterward grant by the crown  to Thomas Lord Audley and the rectory or impropriation of the say church of  chishull great and the great tithe thereto belong by diverse mesne conveyance  come to John cook esquire decease grandfather appellant Richard cook who pay  the four quarter of wheat four quarter of barley and four quarter of oat and  yearly pension of S grant by the respective instrument aforesaid or some  yearly composition in money in lieu thereof Robert part clerk then vicar of  the say church of chishull great for many year and to the time of his death  which happen in the year after the death of part the vicarage be put under  sequestration and remain so for several year without a vicar until when John  ware clerk be present by the crown by lapse to the say vicarage and be  institute and induct therein and the say John ware soon after exhibit his bill  in the court of exchequer to be pay the say yearly quantity of corn and the  say S in money yearly against the then impropriator of the say rectory of  chishull great but before the cause be hear he resign the vicarage on the d of  August and the respondent be present thereto and institute and induct therein  on the saint of February in Michaelmas term the respondent as vicar of the say  church exhibit his bill in the court of exchequer against the appellant  Richard cook the then impropriator of the rectory to be pay the arrear of the  say four quarter of wheat four quarter of barley and four quarter of oat  yearly and of the say yearly sum of S which have become due to he and of which  he have not receive any part and that the respondent right as vicar to the say  yearly payment of corn and money may be establish and that the same may be  decree to be pay and money deliver to he and his successor for the future  brown the appellant cook put in his answer to this bill and afterward in April  and while the cause be depend he sell the say rectory and the tithe and  possession belong thereto to the appellant Wilkes who have notice of the say  suit and of the respondent claim the respondent have since fill his original  bill discover some write receipt and account which pass between the appellant  cook grandfather and the say Robert part relate to the payment of the say  yearly quantity of corn and of the say yearly sum of S the respondent apply to  and obtain leave of the court to file a supplemental bill and put these new  matter and evidence in issue diverse witness have be then examine as well on  the part of the respondent as of the appellant cook and publication have also  pass in the cause and thereupon the respondent in Michaelmas term exhibit his  supplemental bill against both the appellant to be pay the say yearly quantity  of corn and yearly sum of S and to have the same establish in such manner as  be pray by the original bill the appellant put in their respective answer to  this supplemental bill and thereby admit that pen the say suit the appellant  Wilkes have purchase of the appellant cook the say rectory or parsonage  impropriate of chishull great and the tithe and possession thereof and the  appellant Wilkes submit to be bind by the determination of that cause and do  not deny notice of the say suit brown er p before he purchase but both the  appellant deny the legality of every article of the respondent demand the  cause be at issue as to the new matter allege by the supplemental bill diverse  witness be examine on the part of the respondent touch the same and  publication have duly pass the cause come on to be hear before the baron on  the that of November when it be order and decree that the say ancient annual  payment of four quarter of wheat four quarter of barley and four quarter of  oat and of S yearly shall be establish and that the appellant cook shall  account for the same before the deputy remembrancer accord to the value of the  say respective quantity of corn and also for the say S ayear during the  several year he be in possession of the say rectory or receive the rend and  profit thereof and that the appellant Wilkes shall also account for the value  thereof from the time he purchase and come into the possession of the say  rectory and that what shall be find due from the appellant respective on the  say account shall be pay by they respective to the respondent and that the  appellant cook shall pay to the respondent the cost of suit to the time of  fill the supplemental bill and that both the appellant shall pay the cost  thereof from that time the respondent think himself aggrieve by so much of  this decree as direct the appellant Wilkes to account for and pay the value of  the corn and the S ayear only from the time brown of his purchase and be  advice that the say yearly payment of corn and money affect the estate and  inheritance of the say rectory and be a encumbrance and charge thereon and on  the tithe and possession thereof which have be purchase by the appellant  Wilkes and that the respondent be entitle to a satisfaction for all the arrear  of the say yearly payment out of the say rectory into who hand soever the same  shall come the respondent therefore apply to the court of exchequer to rehear  the cause on that point and it be accord reheard on the d of April when the  court decree that the former decree shall be vary in the follow manner  videlicet the court unanimous declare that the yearly payment of four quarter  of wheat four quarter of barley and four quarter of oat and the say annual  payment of S demand by the respondent original and supplemental bill and the  arrear thereof be a charge on the impropriate rectory of chishull great and it  be order adjudge and decree that the say payment shall be and the same be  thereby establish for the future and that both the appellant shall come to a  account with the respondent before the deputy remembrancer for the arrear of  the say several quantity of corn accord to the value thereof and also for the  arrear of the say annual payment of S from the time the respondent be  institute and induct to the say vicarage and shall satisfy and pay to the  respondent what shall appear to be due for the same and it be refer to the  deputy to take the account in the take of which account he be to distinguish  what part of the say arrear accrue due in the time the appellant have be  respective in possession of the say rectory and be to make the appellant all  just allowance and it be further order and decree that if the appellant Wilkes  shall pay or shall be compel to pay any thing to the respondent on account of  any arrear which accrue due in the time of the appellant cook then the  appellant Wilkes be to be at liberty to prosecute that decree against the  appellant cook in the name of the respondent in order to reimburse himself  what he shall so pay on account of such arrear and all other part of the  former decree not thereby vary or alter be to stand and be observe by all  party from both these decree the appellant appeal insist d rider I Lacy that  the endowment and augmentation make by the bishop to this vicarage of corn and  money be only a personal charge upon the impropriator for the time be for  which no distress by law can be have and not any charge upon the land to bind  the same with the payment of the arrear of this corn and money in who hand  soever the rectory shall come and consequent that the appellant ought not  either in law or equity to be answerable to the respondent for any arrear of  corn and money which accrue due before the time that they respective become  impropriators that the appellant cook be answerable for these allowance of  corn and money only during the time of his be brown in possession of the  rectory brown er p and not from the time of the respondent be institute and  induct into the vicarage and especial as it appear to be the entire laches of  the respondent in not prosecute his right against Mr Wilcox the former  impropriator for at least fourteen year that he be in possession of the  rectory or ad the respondent even make Wilcox or his representative party to  his bill in order to obtain payment from they for so great a length of time  neither do the respondent either by his original or supplemental bill so much  as pretend that these allowance of corn and money be a charge upon the  inheritance of the rectory into who hand soever it may come it be insist on  below that though this endowment may not show a prescriptive right yet it be  not necessary to be take as the only original settlement but that in these  ancient transaction something further may be presumed The appellant however  hope that no such presumption will obtain in the present case for here be show  the establishment itself the time when it commence quo jure it be establish  and this will very well account for any payment which may have be make without  suppose any thing but what appear the bishop authority at least in those early  time may do this without make the charge a lie upon the rectory in all future  time and the respondent by his bill have make the two instrument  abovementioned the sole foundation of his demand it be also insist on below  that the bishop by force of the act Richard two c and Henry IV c have a power  to charge the inheritance but in answer to this it must be observe that this  endowment be make in the year whereas the act of Richard two c be not make  till and have no relation to any appropriation make before that time it say  only that in every licence from hence forth to be make in the chancery of the  appropriation of any parish church it shall be express contain and compromise  that the diocesan of the place upon the appropriation of such church shall  ordain accord to the value of such church a convenient sum of money to be pay  and distribute yearly of the fruit and profit of the same church by those that  shall have the say church in proper use and by their successor to the poor  parishioner of the say church in aid of their live and sustenance for ever and  also that the vicar be well and sufficient endow but if this act have a  retrospect it do not affect the present question as it only give the bishop  power to augment with a competent sum Obligatory between the rector and vicar  for the time being As to the act Henry IV c it ordain that in every church  appropriate or to be appropriate a secular person shall be ordain vicar  perpetual but how this affect the present question can not be easy see for  before that act the religious house be not oblige to employ brown secular  clergy and they may remove whosoever they have appoint at pleasure it be  therefore hope that the decree and the order upon the rehear will be reverse  or vary and that the appellant cook shall only be answerable to the respondent  for these arrear from the time of fill his original bill and that the other  appellant Wilkes shall be answerable for the same only from the time of his  become the impropriator on the other side it be argue W Murray t Bootle that  at commonlaw the ordinary upon all appropriation be to take care that a  sufficient endowment be make out of the parsonage for the maintenance of the  vicar and have a power as ordinary to compel the make it out of the parsonage  but proper care not be take by the ordinary that such endowment be make  whereby many vicar have not sufficient to maintain themselves the statute of  Richard two c be make to prevent the future consequence of such neglect but  this statute not be sufficient observe it be afterward by the statute of Henry  IV c ordain that the former statute shall be firm hold and keep and be put in  execution and that all appropriation make contrary to that statute shall be  void and that from thenceforth in every church so appropriate a secular person  shall be ordain vicar perpetual canonical institute and induct in the same and  convenably endow by the discretion of the ordinary to do divine service and to  inform the people and keep hospitality there now if a endowment create no  charge or lie on the rectory or parsonage itself but only a personal charge on  the rector or impropriator for the time be it will be very precarious indeed  and the vicar will not have a certain maintenance because by the death of the  rector or impropriator brown er p all the arrear may be lose and the vicar be  starve whereas the plain intention of these statute be that the endowment  shall be a charge or lie on the rectory itself as a encumbrance thereon and  that the rectory shall be a security for and Chargeable with all the arrear  for the support of the vicar into who hand soever it shall come that the vicar  be by law entitle to all the fruit and profit of his vicarage from the time of  his induction and it seem in this case to be admit that the respondent as  vicar be entitle to the say several annual payment there appear to be no  reason why the rectory shall be discharge from pay the arrear thereof for any  part of the time the respondent have actual serve the cure during the whole  time and these payment be in the nature of wage for such his service as to the  length of time before his original bill be bring there be a suit depend for  many year in the court of chancery between the appellant cook and one Jarvis  Wilcox who father have purchase the rectory of cook father and other about the  title to this rectory which cause be not hear till the that of June nor be it  final determine till some time in during all which time the brown rectory be  in the hand of a receiver appoint by the court and the appellant cook thereby  keep out of possession so that till the event of that suit the respondent can  not know against who to bring his bill that it be prove in the cause that many  year ago John cook the appellant grandfather who be impropriator of this  rectory pay to Robert part the vicar the say several quantity of corn in kind  and that on the d of February the say John cook accept a lease from part of  the say yearly quantity of corn and of the say yearly sum of S in money for a  term of three year under the yearly rend of pound Payable quarterly and that  by several subsequent agreement cook hold the say quantity of corn and yearly  sum as tenant or lessee thereof under part for many year at the like yearly  rend that the appellant Wilkes purchase pen the suit and with notice of the  respondent demand and can not therefore be in any better condition than the  appellant cook will have be have he continue owner of the rectory until the  time of the decree after hear counsel on this appeal and the unanimous opinion  of the judge present upon a point of law to they proposed The journal be also  silent as to this point but from a memorandum on the print case it appear that  the follow question be put to the judge videlicet whether the appellant be  liable in this case to answer and pay the arrear of the annual payment in  question which become due before they respective come into the rectory and  that the Lord chief justice of the common plea deliver the unanimous opinion  of the judge that they be liable it be order and adjudge that the decree or  order make on the rehear shall be so far vary as that the appellant Wilkes be  only to account for the arrear of the say yearly payment accrue due since the  time of his purchase and that in all other respect the say decree or order  shall be affirm jour vol p