case henry Berkeley and Others Appellants John fox and other respondent that  may the answer of a impropriator admit the vicar right to all tithe except  corn and grain be not sufficient evidence to establish that right against the  occupier bunb the appellant Chaplin be tenant for life of the manor of  Lakenham and the land thereto belong and of some other land within the manor  and parish of Eaton and Amringhall in the county of Norfolk the appellant  Henry Berkley be seize of the reversion in fee of the say manor and land and  the other appellant be tenant or occupier of the say land and all these  several manor of Lakenham Eaton and Amringhall be at the time of the conquest  ancient demesne land of the crown as appear by doomsday book in the year king  William Rufus and Henry I grant two of these manor videlicet Lakenham and  Amringhall to God and the church of Norwich and Herbert then bishop there who  have find the cathedral church to bold as free as in the king hand whereupon  the bishop institute monk in the say church and grant or appoint the say manor  of Lakenham and Amringhall among other manor and land for the support and  maintenance of the say monk and afterward king Henry I grant to God and the  church of Norwich and to Herbert the bishop and to the monk of the say church  the manor of Eaton adjoin to the say manor of Lakenham king Henry two king  John Henry III and Edward I by several charter all of they recite the charter  of king brown William Rufus and Henry I to bishop Herbert confirm the same as  also the say bishop grant to the monk and the same be likewise confirm by pope  Adrian in the year by pope Alexander III in the year by Gregory X in the year  and by several bishop of Norwich succeed bishop Herbert in all which charter  and confirmation of the pope and bishop the manor of Lakenham and Amringhall  and the church and tithe be express mention and confirm accord to the then  constitution of the church of England the king and all his subject may give or  grant their tithe to what religious house or parson they please and so it  continue till the year and until that arrive all patron of church as well lie  patron as religious collate their own clerk that be by investiture from their  own hand without presentation or institution and the religious house general  place a monk of their house in their church until the pope at his council and  the national synod here begin to forbid the parochial clergy from take any  tithe or church from the hand of layman by investiture without the consent of  the bishop and although the king give some allowance to these canon yet the  practice of patron invest their clerk in their church and dispose of their  tithe as they please continue until the lateran council in the year then the  lie patron begin to obey those canon and the religious patron where they hold  manor with the tithe brown er p obtain licence from the bishop to hold their  church in to appropriate use and to serve the same by chaplain of their own  removable at pleasure the monk at Norwich obtain several of such licence from  John de grey bishop of Norwich to hold such of their church of which they have  the advowson and benefice to their own proper use and particular the say  bishop de grey between the year and by his charter of appropriation do  appropriate the say church of Lakenham to the priory of Norwich and grant  licence to the say priory and convent to enter upon the say church whenever it  shall be void and to cause service to be perform therein by their chaplain  removable at their pleasure by these licence and grant the church of Lakenham  become unite or appropriate to the say priory of Norwich and king John Henry  III and Edward I by their several grant or charter confirm to the say prior  and monk of Norwich all gift and liberty whatever before give or grant to they  by which mean they become parson imparsonee and perpetual incumbent in this  church without institution and induction and no lapse can ensue or fall to any  succeed bishop or to the crown the crown and bishop be bind by the say charter  brown several papal order be issue out for the supply parochial church with  secular priest the prior and convent of Norwich between the year and present  vicar to Lakenham but never before or after and allow to the vicar officiate a  stipend of S a year but never endow the vicar of any part of the profit of the  church and to avoid endow the vicarage the say prior and convent from the year  to the dissolution of the priory serve the say church by a chaplain which be  usual one of their own house removable at pleasure so that from to be year no  vicar be institute in the say church the cure be constant serve by chaplain  during such time as the priory subsist the prior and convent hold the say  manor and rectory of Lakenham with all the tithe of the say parish and  frequent lease the same with the tithe thereof to tenant who hold and enjoy  accord but this priory be in the that year of king Henry VIII dissolve and by  the act of the saint of that king for the dissolution of abbey and monastery  it be enact that all land tenement and tithe shall be vest in the king and his  heir in the same state and condition as the abbot and prior hold the same and  discharge of and acquit from the payment of tithe as the abbot and prior hold  the same king Henry VIII by letter patent bear date the same year change the  say priory and find a dean and chapter in the say church and grant to the say  dean and chapter the manor of Lakenham and the demesne land with the tithe  thereof and all privilege thereto belong or therewith hold and occupy in as  large and ample manner as the say prior and convent hold the same and accord  the say dean and chapter and their tenant farmer and occupier of the say land  hold and enjoy the same free and discharge of all manner of tithe whatsoever  the say dean and chapter be thus seize of the say manor and demesne land and  the tithe thereof with the rectory of Lakenham by their deed under their  common seal date the saint of June saint Edward VI surrender the same among  other thing to the say king who become seize thereof acquit and discharge from  the payment of tithe as the dean and chapter have hold the same king Edward VI  by his letter patent bear date the that of November follow do refound the say  dean and chapter and grant they several manor and land but reserve and except  thereout the say manor of Lakenham and the demesne land and all the tithe  thereof as thentofore hold use demise or lease and by letter patent date the  saint of July in the that year of his reign grant same to Thomas Gresham Esq  by the name of the manor of Lakenham and brown all land meadow pasture feed  wood tithe of corn hay hemp and all tithe whatsoever in Lakenham Trowse and  Bracondale to the say manor and land any wise belong or therewith use hold or  repute and under this Thomas Gresham the appellant Mr Berkley and mrs Chaplin  be entitle to the inheritance and freeholder the say manor land and tithe the  say dean and chapter under the charter of the that of November saint Edward VI  be entitle to the rectory of the church of Lakenham and all tithe in the say  parish of Lakenham except the manor and demesne land serve the cure at  Lakenham by a chaplain to who they pay yearly a stipend and continue so to  serve the say brown er p cure till the year at which time one Wilkinson  pretend that Lakenham be a vicarage lapse to the crown obtain a presentation  thereto and have institution thereon but the rectory and the tithe there  belong to the say dean and chapter be then under a lease make by the dean and  chapter in the that year of queen Elizabeth to one Layer for year which do not  expire till Wilkinson can get no tithe so that he resign in and in the dean  and chapter instead of appoint a chaplain or curate present one smith to the  church of Lakenham and the say lease to Layer be in some short time after  surrender to the dean and chapter they permit small tithe belong to they to be  take by their new vicar in lieu of the stipend pay by they to their curate or  chaplain after the death of smith the dean and chapter present other clerk to  say church when vacant as a vicarage and permit they to receive the small  tithe belong to the dean and chapter whence it come to be insist upon that the  vicar of Lakenham entitle to all small tithe within the say parish as a  vicarage endow when in fact there never be any endowment of a vicarage  otherwise than by permission of the dean and chapter as aforesaid but if such  permission be to be consider as a endowment by the dean and chapter it can  extend to no other tithe than what the dean and chapter be entitle to however  in easter term the respondent fox as vicar of Lakenham prefer a bill in the  court of exchequer against the appellant Bardwell ball buttrice proctor and  rix as occupier of the demesne land of the manor of Lakenham from Michaelmas  to Michaelmas to compel payment of all manner of tithe except corn and grain  and among other thing state in his bill it be allege that one ware former  tenant of the say demesne land refuse to pay tithe to one Folchier then vicar  that in Trinity term that William III Folchier bring his suit in the court of  exchequer to compel payment of tithe that ware answer the say bill and that in  easter term in the that of the say king brown the court direct ware to pay  Folchier the vicarial tithe for the say land the appellant Bardwell ball  buttrice proctor and rix answer the respondent fox bill and insist upon the  say land be not liable to the payment of vicarial tithe to the respondent fox  and set forth the exemption as before mention and that the land in their  respective occupation be let to they tithe free and be know so to be that the  occupier of the manor house usual hear divine service at Lakenham church and  frequent give the minister S as a free gift or offer who accept the same in a  thankful manner know no tithe be due and as to the decree obtain by Folchier  against ware it appear by ware be answer that he insist that he never hear  tithe be pay for the land in his possession for that the say land be part of  some religious house and discharge of tithe that the say land belong to Lord  Berkley who in February lease the same to ware for year and in George Berkley  Esq lease the say land to ware who then have hold they year and no tithe be in  all that time demand that the inheritance of the say land be in Lord Berkley  and Jeremy Chaplin Esq in right of his wife and that the say ware be only  tenant can not answer as to the right of tithe without the aid of Lord Berkley  and Chaplin and pray that they may be make party that the say cause be bring  to a hear against ware only when the court declare it be a weak bill but a  worse answer and decree ware to account for tithe but Folchier afterward  resign his vicarage and ware never pay tithe to any other vicar in Trinity  term the appellant exhibit their bill against the respondent fox and the dean  and chapter of Norwich set forth among other thing that the respondent fox  have extort several sum of money from the appellant the tenant upon pretence  of tithe and pray that fox may account for such sum and that the appellant may  be quiet in the enjoyment of their land tithe free and to establish the  exemption of the say land from the payment of tithe the respondent fox in his  answer to this cross bill admit the seize of the prior and convent as before  state the enjoyment of the tithe by they till their dissolution and the lease  make thereof by the prior and convent and also by the dean and chapter after  the dissolution he then say that he can not find in what year or by what  bishop the vicar of Lakenham be endow nor that any vicar be present or any  institution after till the presentation of Wilkinson but believe that the  brown er p say prior and convent after the statute of Edward IV serve the cure  by a chaplain to who they pay a stipend and that after the translation of the  priory into a deanery the dean and chapter for several year till brown provide  a chaplain and pay he a stipend and he admit to have receive several sum of  money of the appellant the tenant on account of tithe the dean and chapter by  their answer say that they can not find any endowment of any vicarage of  Lakenham or any presentation thereto after the year till the presentation of  Wilkinson on the that of April both cause come on to be hear before the baron  of the exchequer when the counsel for the appellant expect that the court will  do nothing without a trial at law go no far into the cause than open the  several plead in order to settle a proper issue to try the exemption which be  insist on by the appellant but the court be please to deny the same and  without read be deposition of any of the witnesses Mr Bunbury in his report of  this case say that the dean and chapter have say in their answer that the  vicar have be entitle to all tithe except corn and grain the court think this  sufficient evidence to support the vicar right and decree accord to decree  that the appellant Bardwell ball buttrice proctor and rix shall account for  and pay the tithe demand by the original bill with cost and to dismiss the  cross bill with cost in Hilary term follow the appellant petition the court  for a rehear in hope of either establish their exemption upon evidence or of  lie a foundation for direct a issue at law or at least of have their evidence  read in order to enable upon the merit but the court think proper to refuse a  rehear because application be not make for that purpose within six month after  pronounce the decree although the decree be not then pass the appellant  therefore appeal insist I will n fazakerley that though vicar may have be  ancient institute in this church yet no vicarage be endow they be not entitle  to any tithe for tithe be not due of common right to a vicar and in the  present case there be not the least evidence of any endowment neither be there  any proof of the payment of tithe by the occupier of the demesne land till  ware be force to it by Folchier by a decree make upon a mistake improper  defence and in a suit to which the owner of the inheritance be not party and  who can not therefore be bind by the decree that the title of the appellant to  the exemption insist on depend upon old record and other write evidence and  also upon a great variety of fact which they be ready to make out and strong  insist to try by a proper issue at law the right be now in effect determine  against they without a hear brown on the other side it be argue g Eyre I  strange that as the vicarage still subsist the abuse practice the prior and  convent in keep it vacant by not present can not prejudice the right of the  vicarage when the same become full that the surrender of the dean and chapter  to king Edward VI though it may have vest in the crown the manor and demesne  land and the tithe of corn to which the dean and chapter be entitle as  impropriators yet it can not affect the right belong to the vicarage that the  general right be with the respondent it be incumbent on the appellant at the  hear of the cause to have proceed and lie before the court the evidence of  their pretend exemption and which in all probability they will have do have  they think the same sufficient or any degree strong than the evidence in the  two former cause wherein decree have be pronounce favour of the vicar and his  lessee but as the appellant do not offer any evidence to this purpose it be  agreeable to the constant and know practice of the court to decree accord to  the general right wherever person claim a exemption give no evidence in  support of it and therefore it be hope that the decree will be affirm and the  appeal dismiss with exemplary cost but after hear counsel on this appeal it be  order and adjudge that the decree and order of dismission therein complain of  shall be reverse and it be further order that the say court of exchequer shall  proceed to hear the cause upon the plead and proof take therein jour vol p  brown er p