brown case henry MICKLEBURGH appellant Samuel crisp respondent that February a  large common extend itself into several parish and by custom the owner of the  cattle feed upon this common pay tithe of such feed to the parson of the  parish in which they respective live and not to the parson of that parish in  which the cattle occasional feed this be a good custom viner vol p can Eq can  ab can there be a large open and uninclosed common of about acre call  Micklefenn lie between and extend itself into the several parish of Kirbycane  Stockton Gelston Ellingham and other town in the county of Norfolk the  inhabitant of the several parish border upon this common have for time  immemorial and in order to prevent a multiplicity of suit permit a sort of  intercommoning between one another upon all part of it and accord their cattle  be drive and feed thereon promiscuous this right of common be deem to belong  to the respective farm in each town and take to be a part of those farm and  the owner of the cattle so feed always pay the tithe thereof to the parson of  that parish in which their farm be situate and these tithe of consequence  become large by reason of the right or privilege of feed upon this common the  appellant rend one farm in the parish of Kirbycane and another in the parish  of Stockton and he constant pay his full tithe to the respective rector of  those parish without any abatement in respect of his feed his cattle upon the  say common the appellant also occupy five acre of meadow in the parish of  Ellingham for which there be Payable a modus of d a acre and which have accord  be pay or tender to the respondent as rector of that parish but in easter term  the respondent think proper to exhibit his bill in the court of exchequer  against the appellant for the tytheherbage of this meadowground and also for  the tithe of the feed of his cattle on the say common call Micklefenn suggest  that he the plaintiff be well entitle to those tithe to this bill the  defendant put in a answer and thereby insist on the modus of d a acre for the  meadow ground which he be ready to pay but as to the other demand he state  brown er p that the inhabitant of the respective parish adjoin to the common  have time out of mind pay tithe for their cattle feed thereon to the incumbent  of the parish where the owner of such cattle live and where in the winter  season they be keep that he have pay tithe for his cattle feed upon the say  common to the incumbent of Kirbycane in which parish he live and to the brown  rector of Stockton where his other farm lie and that he have two parcel of  dole land in Gelston common where he have a right to feed cattle and cut alder  but can not come at those land without drive over that part of the common call  Micklefenn which lie in the say parish of Ellingham on the saint of July the  cause be hear when the court be please to decree that the defendant shall  account for the tithe of his cattle feed upon that part of Micklefenn common  which lie in the say parish of Ellingham and also for the modus of d a acre  for his meadow land in that parish from this decree the defendant appeal  insist S Dodd f page that tithe have never be pay nor be any due to the  respondent as rector of Ellingham for the appellant cattle feed on that part  of the common call Micklefenn which lie in the say parish and therefore the  appellant ought not to have be decree to account for such tithe for in that  case he will pay his tithe twice over and such payment will create perpetual  suit and controversy as well between the parson as the parishioner of the say  several parish and as to the modus of d a acre the appellant never contest or  deny the payment of it but on the contrary be always ready and Willing to pay  it and that therefore in this respect the bill ought to have be dismiss with  cost to this it be answer W Ettricke c Phipps that the appellant cattle for  which the tithe be decree be dry barren and unprofitable cattle and not by law  titheable to the minister of the parish where the owner live for the time they  be feed in the respondent parish but to the respondent as minister of the  parish where they be feed and therefore the suggestion of pay double tithe be  groundless that if the respondent shall not have tithe for the feed of these  cattle upon the land within his parish the herbage of all the pasture land  therein may be eat by the cattle of stranger without his receive any  satisfaction for the same and there will be a non decimand for the feed of the  appellant cattle during the time they be feed in the respondent parish because  for that time the minister of the parish where the appellant live can have no  pretence of right to such tithe but after hear counsel on this appeal the  question be put whether the decree shall be reverse and be resolve in the  affirmative it be order and adjudge that the decree of the court of exchequer  in the appeal complain of shall be reverse and that the plaintiff bill in the  court of exchequer shall be dismiss without prejudice to his right to the  modus of d per acre for the five acre of land in Ellingham jour vol p