case wright against wright a bishop may prescrihe in non decimand of a manor  hold in right of his bishopric and his tenant of the manor may by such  prescription also he discharge and a surmise upon a prohibition that such plea  be refuse by the spiritual court be traversable ante post roll Abr   Leon more  yely Bl Com strange burr Bac Abr wood Inst Com dig post prohibition and  surmise that the bishop of Winton and all his predecessor from time whereof c  hold the manor of Eastmere for they and their farmors and tenant for year or  at will free and discharge from the payment of all tithe and that he be lessee  of the say bishop offer this plea in the spiritual court and that they refuse  it there the defendant plead that the spiritual court receive the plea and  admit he to his proof and traverse the refusal of the plea there and it be  thereupon demurrer Walter for the defendant move that this surmise of the  refusal of the plea be traversable for a prohibition lie where they refuse  towdo right to the party or the suit be where it ought not to he and so  injustice be do to the party otherwise the suit in the spiritual court which  be the proper place to sue for tithe ought not to be stay and then the  material cause to award this prohibition be the refusal of thie plea for  otherwise without this surmise a prohibition lie not as Edward pl and Edward  pl and a surmise which take away the jurisdiction from another court be always  traversable as Henry pl Henry pl Henry pl be and so in this court it have be  oftentimes rule that the refusal of a plea in the spiritual court allege be  traversable as in easter term Elizabeth betwixt Eaton and morris and Trinity  Elizabeth betwixt Ascoll and Wigen where in a prohibition for a suit for tithe  he surmise that he plead in the spiritual court that the parson have not read  his article and therefore not parson by the statute of Eliz and this plea be  there refuse the refusal be traverse by direction of the court the  prescription also be not good here for one can prescrihe de non decimand nor  to he discharge from tithe and although the bishop a by James c no judgement  shall he stay or reverse after verdict by reason the visne be sue out to more  or few place than it ought so as some one place he right name nor by pound car  c if the cause be try by a proper jury of the county or place where the action  be lie see also Ann c and Geo c croak Elizabeth er p be a spiritual person may  prescribe to he discharge of tithe yet his lessee shall pay tithe because he  be a lie person and can participate of the privilege of his lessor and  therefore Tanfield who argue on the same side say that it be adjudge Elizabeth  in the exchequer that the queen lessee shall pay tithe yet that queen never  pay any for she be privilege by reason of her prerogative a and the case in  dyer prove nothing against it for the statute there be make for the land of  the abbot and not for the land of the bishop wherefore c coke concern the case  of the traverse of the refusal of the plea they be all to he answer with this  difference the refusal be traversable unless where a modus kill be the  question for therein saris constat to the court here that the spiritual court  will not allow of any plea for a modus decitmandi the refusal of the plea for  not read his article be traversable and the prescription here be good for  before the Council croak Elizabeth of lateran tithe be not Payable here to  certain person I nor to place as appe rs ass pl Edward pl Henry pl which be  the reason also why the king shall have the tithe of land out of any parish a  because the say council extend not unto they and layman at the commonlaw be  not capable of any tithe because they can not sue for they in a court  Christian but by way of retainer he may well have they as Edward pl register  fol nat Br g and there it be hold that a assignee may hold discharge of tithe  and Edward pl pound Edward the farmor of a parson may sue in the spiritual  court for tithe and as it be in KnigAtleys case the pope may have discharge  one from the payment of tithe so there may he a prescription that a bishop and  his farmor may hold without pay tithe wherefore c and be afterward move again  all the court resolve that this allegation of the refusal of the plea be not  the substance of theplea but a surmise which be never traversable especial  where a modus kill shall come in question and that this prescription for the  farmor be good and as well as if it have be by the bishop himself for the  lessor himself be of right discharge the farmor also shall be discharge  against the parson but peradventure not against his lessor wherefore it be  adjudge accord   see the case oirSte phenson v hill bar