bastard against Stukley enter pasch car Devon prohibition keb levinz Nels Abr  the defendant have take administration of the good of his wife sue the  plaintiff in the consistory court of Exeter for a legacy give to his wife by  the mother of the plaintiff and the wife in these word the remainder of my  good my debt be first pay I will to be divide into eight equal part videlicet  to each of my four child name they one eight part the other four part I give  unto my daughter Alice who be the wife of the defendant and bevel my son the  plaintiff and make they two my executor the plaintiff plead the good belong to  he by survivor upon the death of ibis sister they have as executor in her  lifetime consent to this legacy which be joint give to they which plea and  proof thereof be refuse by the judge of the spiritual court Jones t er p this  prohibition be bring by the plaintiff and all this matter be disclose in the  declaration upon the prohibition the defendant demurrer and master for the  defendant argue that it be for a legacy which be proper to a spiritual court  and of their cognizance and though there be a difference between the common  and canon law in the case of jointtenancy and tenancy in common yet in this  which happen in the matter of a legacy construction ought to be make accord to  the spiritual law roll Prohib and accord to he the executor consent do not  alter the case for here the legacy remain uncertain Br devise pl and though  the court Christian bad refuse the plaintiff plea yet this be no cause for a  prohibition where the court have jurisdiction as in this case it have Cr  Elizabeth   Entr he except only the plea de modus kill which saris constat the  spiritual court will refuse   bishop of Winchester case pollexfen for the  plaintiff agree the case in roll but the consent of the executor make the case  different for by the consent the property be vest in the legatee to their own  use and they be possess in Jones t their own right and now the determination  of the property belong to the commonlaw and in his opinion refusal be cause of  prohibition though the spiritual court have jurisdiction of the principal as  in a suit for tithe if it be plead that the tithe be set out and the parson  take they Cr Elizabeth bennet case and in a suit for beat of a clerk more