ball and knight vide ante Mr draper now argue for the plaintiff in error and  submit it that the custom to award a tale be in itself void the first statute  which give a tale he say be that of h and that be at the prayer of the  plaintiff the next statute be that of Elizabeth and that be at the prayer of  the defendant but there be a express clause in the statute of h that that  statute shall not extend to city or town corporate and therefore there be no  pretence that the tale in the present case can be support by that Act of  parliament the question therefore be in relation to the validity of the custom  the rule of the law he apprehend be that no custom of a inferior court shall  be allow of which break in upon the fundamental rule of proceed in the  superior jurisdiction for this reason a custom in a inferior court to try a  issue by six juryman be hold void in Cr so a custom to award a capias before a  summons be hold the same in roll ab and beside he observe that the very custom  now in question be doubt to be void in the same page of roll ab and there be  another case there cite where this custom be absolute disallow of that case be  determine Ch and he produce the roll now in court where the judgement below  appear to be reverse he take notice far that the custom as lie in the present  record be particular bad for the custom be lie to be to choose a tale de  circurnstantibus in general without say de vicineto whereas the statute of h  appoint the tale to be of man live within the body of the county and therefore  he submit it that it be absolute unfit and unreasonable that Barnardiston king  b the tale shall be of man reside in the remote part from that jurisdiction  provide they happen to be stand there present sergeant eyres argue on the  other side and say that he apprehend the rule of law to be that no custom in a  inferior court shall be hold to be against law mere because it differ from the  establish rule of proceed in other jurisdiction unless such custom be in  itself a unreasonable custom for this reason a custom in Chester that the  plaintiff in error shall pay cost where the judgement be affirm be allow  though it be against the establish rule of proceed in the court above to give  cost in any case by the commonlaw to which purpose be cite roll ab so where a  custom be in a inferior court that in a action upon bind the defendant may  acknowledge the action but pray that the true sum may be inquire into which be  good fide owe that custom be allow as appear by cro and Mod the question  therefore be whether the present custom be a unreasonable one or not to show  that it be not he say he think no other proof be requisite than that the  statute of h have make such practice universal in all the superior  jurisdiction and beside he observe that in roll ab it be actual hold that such  custom to award a tale be good the chief justice and judge probin incline to  be of opinion that the custom be good judge page that it be not upon account  of the generality of it that the tale shall be grant of any person that happen  to be present accord the matter be order to stand over vide post