case hicks against woodeson a custom de non decimand for the agistment of  cattle can be allege in a hundred or in a county S c salk S c Carth S c comb S  c holt S c skin S c Mod S c ld ray S c ray Ent prohibition the plaintiff  suggest that the parish of Huntspill be a ancient parish of which he be a  inhabitant and use land there that in the say parish there be a custom to pay  several small sum to the parson in lieu of small tithe which sum be particular  set forth that this parish be within the hundred of Hunstpill and that there  be a custom also for every inhabitant and occupier of land within the say  hundred to be discharge of tithe for the pasture of barren and unprofitable  cattle the defendant traverse the custom and issue be thereupon join it be  find for the plaintiff and now it be move in arrest of judgement first that a  custom allege in non decimand in a whole hundred be void in law second admit  it to be good yet it be not well plead here because the modern er p plaintiff  have not show that there be a sufficient maintenance for the parson beside  those tithe first it be argue that this custom be against common right because  there be never yet any precedent of a custom to discharge a layman in non  decimand it be agree that as to ecclesiastical person such a custom may be  good but not as to a layman modern because he be not capable at the commonlaw  to have tithe and therefore can not sue for they in the spiritual court but  now he be enable by the statute of Henry c and as tithe in general be due of  common right so this particular tithe of agistment of barren cattle be due the  rather because those which be for the cart be discharge by custom it be the  whole profit of the land out of which some thing must be pay to the parson a  layman be allow to prescribe in modus kill but not to be exempt from all tithe  in general because some must be pay and be due of common right though the  quantity be ascertain by custom and usage if therefore tithe be due of common  right such a prescription either in a hundred or a county will not be good  because if it shall be allow every person in that hundred or county may  prescribe and nothing will be leave for the parson it be true my Lord roll  affirm the contrary roll Abr pl a but he deny it again in the same line roll  Abr pl b which show that book to be of little authority in this case it be  likewise say in the same book Kidder v Edward roll Abr pl Com dig dime e c  that a prohibition be grant in a case of the same nature with this which be  thus videlicet a man prescribe to a custom within two hundred of Middlesex and  Surrey that if a common baker dwell in either of these hundred shall erect a  mill there to grind corn for his trade and sell it to customer in or near  those hundred for their sustenance such a baker shall pay no tithe for the  corn but the reason upon which that case be adjudge do not suit with this for  the parson there have more and great tithe out of the land of the inhabitant  and of they who be sustain in those hundred than he can have by the manual  occupation of a miller in Michaelmas term in the eleven year of Charles the  first and in the same book roll Abr a it be mention that a prohibition be  grant upon a surmise that tithe ought not to be pay for pheasant egg or young  pheasant hatch in wood enclose in the Chiltern of Buckinghamshire but that be  because they be ferae nature such a custom as be here allege can never have a  reasonable commencement because of common right tithe ought to be pay out of  all landPriddle v Napier   b and though before the Council of lateran no  person can claim they because there be no parish hob c yet still they be due  to the church modern though it be in the power of the donor to give they to  what spiritual person he though fit Jones more and see Charlton v Charlton  bunb d it be in favor church that the law will not allow a prescription in non  decimand to prevail against her it be true a prescription strengthen all other  title but be of no force when plead in discharge of tithe bury v Evans bunb e  because the law presume that a layman can be absolute discharge without the  consent of the parson the patron and the ordinary and then likewise the grant  of such discharge or exemption must appear this be the opinion of Doderidge  justice Bulst g ground upon the authority of Lyndewode and of the author of  the doctor and student saint germane I the whole country may be discharge of  tithe but such discharge ought to have a reasonable commencement which must be  show now it will be very strange that the law shall reject a prescription to  be discharge of tithe in a particular place and yet to allow a custom in a  whole hundred in non decimand one single instance may be give where such a  custom have be allow it be in my Lord roll abridgement roll Abr pl Litt Rep  Inst king and modern er p it be for the milk of ewe and probable the reason  may be that such milk be of little value to the parson and do not much  contribute to his maintenance for which tithe be original ordain but it be but  one single case which do not make a law the case of Russell v Backhurst Bulst  see also roll Abr pl pl roll Rep palmer Inst which seem to give some colour to  such a custom be a controvert case it be thus the parson libel for tithewood  and the defendant pray a prohibition by reason of a prescription in non  decimand for wood grow in the weald of ken it be true the prescription there  be deny and no prohibition grant roll Abr pl m this be in Michaelmas term in  the twelve year of James the first and yet but two year afterward there be a  trial at bar in this court upon a prohibition where such a prescription be  suggest to be discharge of tithe of the Underwood grow in the weald of Sussex  and it be find for the plaintiff and the court hold the prescription good palm  roll Rep n but admit such a prescription in non decimand for Underwood in a  weald be good yet it will not affect this case because in ancient time there  be many controversy about such tithe for at the commonlaw tithe be not to be  pay for tree because cut they down modern be not a increase of their growth as  in corn but a total destruction it be a uncertain profit and not arise yearly  for the maintenance of the parson neither be those tithe due of common right  but by custom and usage and therefore in those day and in those place where  tithewood be due only by custom the parishioner procure wood or other land for  the parson and his successor in satisfaction of all tithewood in the same  parish   a several petition have be make to the parliament concern the right  to such tithe until the statute of Sylva adj Edward c b be make by which all  those controversy be end it be enact that tithe shall not be pay for wood of  twenty year growth or more which imply it shall be pay for all under that age  it be true it be the opinion of my Lord coke Inst c that such a prescription  in a county not only for wood but for any other tithe be good but that can be  no reason why it shall be allow in a hundred because the court can judicial  take notice what a hundred be or what it comprehend yearbook Henry b d it be a  liberty in its commencement it be to have a jurisdiction over a hundred will  or so many parish and therefore it have be hold that a leet can be parcel of a  hundred because they be both liberty and one liberty can be parcel of another  but it do not appear by the plead that there be more than one parish in this  hundred if so such a custom in a parish can never be make good roll Abr pl  Inst march pl f beside there be no consequence to say that there be such a  custom in a county therefore it may be in a hundred because there can be no  inference from one to the other and even in that case it will be very  difficult to find a reason how a county at first come to be exempt from  payment of tithe my Lord roll use the word province and county as synonymous  now a province be only a circuit within the jurisdiction of a archbishop    light Bl Com g probable there may be a agreement between the clergy and the  laity that such a place c shall be exempt from the payment of tithe but there  can be no such agreement in a hundred because that be divide from the county  and become a particular district and the inheritance of several person but the  bailiwicks thereof be reunite to the county by the statute of Edward c and  Edward c modern it be agree on all side that a single parish can have such a  custom roll Abr Inst h and this be a strong reason why a hundred can because  it consist and be make up of several parish and it be as good a reason that a  hundred can have such a custom because a parish can as it be to say a county  may and therefore a hundred may have it modern er p second but admit a hundred  to be capable of such a custom yet it can be so large as this because there  must be a sufficient maintenance leave for the parson which do not appear in  this case and so be all the book where such prescription have be allow which  be very few but never to have such effect as this videlicet to take away the  maintenance of the parson and therefore the plaintiff in the prohibition ought  to have show that there be sufficient for he beside because it be a discharge  against common right and no other reason can support it but to show that the  parson have uberiores Decimus beside the tithe allege to be exempt and this be  the only reason of the judgement in the case of Kidder v Edward roll Abr a e  contra if there may be a custom as it be admit to be discharge in whole county  of tithemilk and of tithecorn ground at such a mill or mill in hundred there  may be also a custom to be discharge of the tithe of fat cattle and if the  parson have live without such tithe time out of mind he may live so still it  be grant on the other side and a authority be produce of a custom to be  discharge of tithe out of two hundred and there can be no reason if that be  law why such a custom may not be good in one hundred it have be object that a  layman can prescribe in non decimand but no good reason can be give for it  roll Abr pl cro James more hob Bunbury b it can be because of any disability  in his person for as to this matter there be no difference between a layman  and a clerk it must therefore be in favor church and introduce by  ecclesiastical person who be former judge here as part of the canon law who  have in those day such a power over the laity that they will not suffer such a  prescription to be try by they neither will they suffer they to sue for tithe  in their court modern this be the reason why it be general say in our book  that a layman can prescribe in non decimand but though he can prescribe c yet  there may be a custom to exempt he from tithe and such a custom be of as good  authority as a prescription for if it be establish by long usage and by the  common consent of our ancestor it passes into a law of that place and be of  equal force with a prescription such be the custom of gavelkind yearbook ass  pl c and borough English yearbook Edward pl d which be the law of England and  as ancient as the commonlaw in the place where these custom prevail it be true  where a custom of a public nature be allege in a particular will or place it  must be show that it be a ancient will as where a man claim land on the south  side of a will set forth that they be time out of mind revisable and so derive  a title to himself by a feoff from the last devisee this be hold void because  it be a custom against commonlaw he ought to have set forth that the will be a  ancient will but if he have allege such a custom in a borough which ex way  termini import a place of antiquity it have be good   light Brady a now in  this case it be allege that the parish of Huntspill be a ancient parish and  then the custom be set forth which be agreeable to the authority before  mention and if the custom be not contrary to reason and justice the judge  never inquire into the commencement of it No man can say that this custom be  unreasonable because it go only in discharge of a single duty now all the book  which condemn prescription in non decimand either in a county or in a parish  be where they be make general of all tithe but they be seldom deny for a  particular thing as in this case and therefore a custom to pass in a ferryboat  tollfree have be adjudge good Mod b though it be far more unreasonable than  this because it be only a discharge to the person claim it and may be a charge  to another so there be many thing which be not titheable of common right as  fish take in the sea rabbit and pigeon spend in the house c and yet by custom  tithe of those thing have be pay to the parson roll Abr cro car c if therefore  it be a reasonable custom for the clergy to charge the laity with tithe of  such thing which modern er p of common right ought not to be Chargeable it be  as reasonable that a layman may discharge himself by a custom in a place where  none have be usual pay modern such a custom as have be observe be not good in  a parish not because it be inconsistent with the law the reason be a single  person or parish be not capable of such a custom dr and saint   d beside the  law require that the parishioner shall show what recompense the parson have in  lie of his tithe by which it may appear that the custom have a reasonable  commencement but no such thing be require of a whole county because it can  with any shadow of reason be pretend that all the inhabitant can or can  conspire to defraud their respective parson but there be book which allow a  custom or usage to be good in place of as large extent yearbook Edward pl  Edward pl e which custom will not bind when allege in a will as in a cessavit  per biennium the lord show the custom of the place to be that where the tenant  do not pay his service in two year he may enter and hold the land till he be  satisfy of the arrear this be hold to be void because the usage be allege in a  particular will only and not show that it be customary so to do in the will  round about but a custom in a hundred in ken that if any one be charge to have  get child in adultery and can acquit himself by law that then he shall forfeit  all his good to the king be hold a good custom roll Abr f so a custom in a  hundred that if a waif or estray be eloigned and it be present that it come to  the possession of any dwell within the hundred the lord may distrain till he  make restitution yearbook Edward pl Edward pl a so a custom that a infant of  the age of fifteen year may make a feoff and sell his land see rob on gav and  Mr Vaillants Edit dyer a pl notorious facts b all these be against commonlaw  but be use in a hundred or county be thereby become the law of the place where  they obtain but to come near to the case it will not be deny that a custom  allege in a parish for all Underwood to be discharge of tithe which be use in  that parish for fence corn be good sand c but then you must show that the  tithe of that corn be pay to the rector but it may be allege in a county weald  or country without any consideration at all and therefore brook in his  abridgement refer to the author of doctor and student say bro Abr title dime  pl d that a man can prescribe in a will to be discharge of tithe because it be  too particular but such a prescription be good in a whole county or hundred  because it be the custom of the placeMarch roll Rep e modern it have be object  that a custom in non decimand may be good in a county but not in a hundred  because of the uncertainty of its extent sure that be a reason of very little  force for the limit of a county be altogether as uncertain as those of a  hundred but a hundred be a know precinct and not bare a liberty roll Abr f as  have be say though there may be many liberty therein for when grant to a  subject it be a liberty vent g but when it remain part of the county it be  otherwise and therefore in a avowry a man may prescribe by a and estate to  have a leet in a hundred Leon h but if a quo warranto be bring against the  hundred he must then set forth his title beside if the word province and  county be synonymous a county and hundred be so too and that in the meaning of  the law as may plain appear for all issue be to be try by juror of the county  Henry c I that be by juror of the hundred for it be a good challenge at the  commonlaw if there be no hundredors of the jury Henry c king in the statute of  Winton Edward c these word be use promiscuous it appoint that inquest of  felony and robbery shall modern er p be take in town hundred franchise and  county so that the offender may be attaint and if the county will not answer  for he then it shall be answerable for the robbery do so that the whole  hundred where the robbery be commit shall be liable such a custom in a hundred  have never yet be condemned for it never come in judgement but in the case for  tithewood and there it be hold to be a good custom even in a whole weald and  what reason can be give why it shall not be good in a hundred as well as in a  weald which be as ancient as the other especial when it can be deny but such  discharge may begin by composition it be object that tithe wood be not due of  common right as all other tithe be and therefore a custom in non decimand for  wood in a hundred may be good but tithewood be due of common right Com dig  dime h a if not to what purpose be the statute de Sylva adj make it be to  ascertain what wood shall pay tithe and what shall be exempt and why do the  nobility and commons prefer several petition to the king after the make that  statute that it may be explain what be mean by sylva adj roll Abr Inst b if no  tithe be due for wood which be a admission that tithe have be pay for it  before that Act modern agreeable to this be the common way of demand tithe for  wood at this time for the libel be always general which show that the party  have a right to demand for if he have not then he must allege a custom and yet  prohibition be never grant upon such general libel suggestion be also make  always in the affirmative but if they be due by custom and not of right then  they ought to be in the negative videlicet to deny that there be any such  custom second point then as to the objection that it do not appear that the  parson have a sufficient maintenance leave the plead seem to be otherwise for  there be several modus set forth for tithe yearly arise in the parish which  may give he a convenient maintenance every year and if he have a sufficient  provision by any one modus it be not material by who he receive it curian it  will be difficult to show a non decimand for any tithe beside those of wood  for all the case which incline to such a custom be put general videlicet that  a county or a hundred may thus prescribe but they do not mention what tithe be  in question now if tithe of wood have be due of common right to what purpose  be that canon make by archbishop Stratford in the seventeenth year of Edward  the three that tithe of sylva adj shall be pay against which canon there be a  petition make to the parliament in that very yearDr and saint Godolph c recite  the ancient usage to be that tithe shall not be pay for wood and the petition  be answer that a prohibition shall be grant against the canon where tithe of  wood have not be accustom to be pay it be true the ecclesiastical court do  hold that tithe be due of common right for every thing nay even for stone or  gravel dig out of pit but the commonlaw be otherwise for tithe of common right  be due only for such thing which arise by annual profit now though tree be  renew yearly yet they yield no annual profit and therefore tithe be not pay  for they Inst Bac Abr d therefore where tithe be pay for thing which do not  arise by such mean they must be due by custom but such a custom in non  decimand can be good and therefore a consultation be grant