case the king against Furness on a appeal to session if the right of tithe  come in question the court can proceed in the cause on affidavit read that the  right of tithe be in question when the cause be hear at the session upon a  appeal it be move that the certiorari and return may be file reeves contra the  affidavit not only say that the right of tithe come in question but also  proceed to show what be mean by that videlicet that time immemorial they have  not pay tithe for lamb proceed from ewe but a year old this be a prescription  de non decimand which be void for all thing be by right tithe able and a  layman can prescribe de non decimand modern report er p fazakerly in reply a  particular place may be exempt from tithe for a particular matter a dr Stud  roll Abr pl a which be the present case the statute will c S say that no  proceed or judgement have by virtue of this Act shall be remove c unless the  title of the tithe come in question this order be not make by virtue of that  Act or accord to it for the Act direct that there must be a demand in write  twenty day before the justice have jurisdiction b S c stram b and nothing of  that appear on the other nor how long the tithe have be due and if this be not  a order make by virtue of this Act a certiorari lie of common course to remove  it without the affidavit modern report reeves they be not now to take  exception to the form of the order but only to consider whether the return  shall be file Pratt chief justice the only matter now be whether the right of  tithe come in question at the session common right be against the defendant  but he say there be a custom for he then whether or not this be a good custom  be a question of law and that point have be doubt in the case of Hunsfield  Puriton in Lord chief justice holt time a prescription de non decimand be not  allow for live cattle and it be there say that it be allow good for wool only  and the reason give be that tithe of wool be by custom and not of common right  it be then a question in law not proper for the session to determine Eyre  justice the justice of the peace can judge of that matter fortescue justice it  will be a good defence to the spiritual court and a good ground for a  prohibition and I can think that the Act be design to give the court of  session a large jurisdiction than the spiritual court per curian absent powys  let the return be file