case hussey vers hussey all inc b plea in abatement hold have and repugnant  where it say that there be two person in come devon of the same name without  distinction vin Abr title addition n pl Com dig title abatement f this be a  quare hinder against John Hussey and John Bagwell clerk for the church of d in  Devonshire the defendant Bagwell plead in abatement that in the county of  Devon there be two person name John Bagwell sen clerk and John Bagwell Jun  clerk and that there be no distinction make and by the affidavit accord to the  statute Ann c John Bagwell of a in the county of Cornwall clerk make oath that  he have a son John Bagwell of d clerk c and it be now move that this plea  shall be reject as frivolous for by the statute Ann dilatory plead shall not  be receive in any court of record unless the defendant by affidavit show the  truth thereof or show some probable matter to the court to induce they to  believe that the fact of such plea be true here the fact of the plea be that  there be two person in the county of Devon name John Bagwell clerk but the  affidavit only say that John Bagwell clerk have a son name John Bagwell clerk  but the father be name of a in the county of Cornwall and it do not appear  that he be of Devonshire but only that the son be there comens second this  plea be not pleadable in this action for there need not be a distinction of  name but in action where process of outlawry lie or in assize where a  attachment go against the defendant and the recognitors appear the first day  of the return of the writ and the defendant who plead that there be no  distinction of the name give he plead also to the assize and therefore there  be no delay but where the action give such a description of the defendant as  distinguish he from all other of the same name there be no need of any  distinction ofsenior or junior as in debt upon a bind for the defendant be  distinguish by the execution of the deed and if he do not execute it be may  plead non be factum r h b so in dower or praecipe quod To give back there be  no need of the distinction for the summons must be of the tenant of the land  and if another be summon be may disclaim l Edward a so here the summons be  only against the disturber or clerk institute to the church and if he be not  true summon the judgement upon the grand distress will be avoid Searle vers  long Mod Rep Mod a if he be summon he receive no prejudice and be be  sufficient describe by his be the disturber comens er p so there be no need of  any distinction when the defendant himself appear as here h h but upon this  matter the court give no opinion but for want of a proper affidavit the plea  be reject and the chief justice say that the plea be in another respect  repugnant because it say two person in the count of Devon be you name John  Bagwell sen and John Bagwell Jun comens N B there be no need of any  distinction but where there be father and son of the same name Edward b h h a