case henry Berkeley and Others Appellants John fox and Others Respondents that  may a old decree for the payment of tithe be evidence of a vicar right though  no endowment can be show nor any proof of payment in pursuance of that decree  in pursuance of the order make on the former appeal vide brown p c p these  cause be on the that of November hear upon the plead and proof when the court  again decree that the appellant the tenant shall account for and pay the tithe  as demand by the original bill with cost and dismiss the cross bill with cost  Comynss Rep viner vol p can the appellant therefore appeal a second time from  this decree state the same case as before and insist I will n fazakerley that  have give full evidence of the exemption there be a sufficient foundation for  the court either to establish the same or at least to direct a issue for try  it that by this decree the appellant be to account for the tithe of all the  land in their brown respective occupation whereas it be plain prove that acre  part of the land in the occupation of the appellant Bardwell be part of the  manor and lie in the several parish of Eaton and Amringhall which have never  pay any vicarial tithe or any composition for the same and that about acre  other part of the say farm lie in the parish of saint Stephen in the county of  the city of Norwich and there be no proof that the respondent be entitle to  any portion of tithe out of land not within the parish of Lakenham that the  appellant be to account for the tithe of hay although the respondent have make  no manner of proof of any title to such tithe or that the same have ever be  take by the vicar beside the tithe of hay be a great tithe and not vicarial  and upon hear the cause of Folchier v ware whereon the respondent in a great  measure find his demand of any tithe whatsoever the then defendant be not to  account for the tithe of hay but by the minute take on the hear of that cause  those tithe be express except the respondent likewise state the same case as  before d rider W Bunbury and in addition to the reason there give it be now  say to have appear upon full proof at the last hear and also by the proof in  the former cause of Folchier v ware that valuable composition for the vicarial  tithe of hall farm be peaceable pay to the vicar of the parish by the tenant  under Lord Berkley for many year together and though dispute be afterward  raise about the say tithe yet the same have be adjudge to the vicar and his  lessee by the former decree after hear counsel on this appeal it be order and  adjudge that the same shall be dismiss and the decree therein complain of  affirm and it be further order that the appellant shall pay to the respondent  John fox pound for his cost in respect of the say appeal jour vol p