Barnardiston king b reed and DOLTERY how far a prohibition shall go to the  ecclesiastical court in a suit relate to tithe on rule to show cause why a  prohibition to the ecclesiastical court shall not be grant the case appear to  be in this manner the plaintiff libel for tithe of agistment of cattle as  curate and sequestrator of the parish of bishopwilton in the county of York  and in his libel set forth that by donation endowment custom and prescription  tithe real and personal be due to the vicar of this parish his curate and  sequestrator and likewise he libel for a offer of penny per year the defendant  by his plea deny that tithe be due to the plaintiff in the manner set forth in  his libel or in any other manner whatsoever and likewise deny his right to the  offer this cause be hear before the ecclesiastical judge and he decree for the  plaintiff dr lee come now to show cause on this rule he say he do agree that  if the plaintiff have find his right to tithe single upon the custom as the  defendant have deny this custom a prohibition will lie but in fact the  defendant have find his right upon the endowment and the custom be only lie by  way of usage in pursuance of it the endowment be by Nicholas de Ross and he  endow the vicar and his successor with altarage Decimus croftorum infra lock  the word altarage he say primary signify such thing only as be immediate for  the service of the altar but the sense of this word have be extend much far  and to signify almost all sort of tithe whatever of this opinion the court of  exchequer be mich Elizabeth and this case be to be see in the remembrancer  office but if there be any doubt whether this word will convey the right of  tithe to the vicar yet certain the other word will namely the Decimus  croftorum he observe likewise that by another clause in this endowment the  right of offer be express give for there be these word in it principal all men  alias offer and if there have not he conceive that the ecclesiastical court  may hold plea for offer even though the custom be deny for this purpose he  rely upon a clause in Edward but especial he submit it that there be no  foundation to grant this prohibition after sentence and for this purpose he  mention cro keb and Noy Mr Bootle argue on the same side and say he do agree  that this suit be between a ecclesiastic and a layman but the right that come  in question in this case be between two ecclesiastic the doubt arise whether  the rector be entitle to these tithe or the vicar in these case he say he  conceive that the ecclesiastical court may well hold plea of a custom and for  this purpose he mention roll ab roll Rep Goulds bull and Leon then with regard  to the come after sentence he do agree that where a want of jurisdiction  appear upon the proceed this defect may be take advantage of even at that time  but where the defect be only of trial he Barnardiston king b submit it it can  not and for this purpose he cite keb and Ven Mr fazakerly argue on the other  side and say that whatever the rule may be between ecclesiastic yet he submit  it that the rule be quite otherwise in suit between a ecclesiastic and a  layman and that though the right of ecclesiastic be only controvert if this be  not so there may be a manifest injustice to the defendant for Barnardiston  king b er p the continuance of a usage for forty year be allow a good custom  in the ecclesiastical court and therefore on such usage the ecclesiastical  judge may well decree for the vicar but in another suit bring by the rector in  the temporal court against this same defendant the temporal judge will decree  for the rector then with regard to the objection that have be make that after  sentence a prohibition can go for defect of trial only he submit the constant  course of the court be otherwise and if there be opinion to the contrary they  can not be law in respect therefore of the offer he conceive there be no doubt  but the rule ought to be make absolute and with regard to the other part of  the suit which be for the agistment he hope the rule will be make absolute for  that likewise he say he conceive that the word altarage have never be extend  to any tithe but such as be due by custom and as to the other clause which be  say to follow he observe that the word be not as be state but they be Decimus  blador croftorum crescen infra lock so that by those word tithe of corn only  be grant for which reason he do conceive that the rule which the  ecclesiastical judge go by in this case be only find upon the usage it appear  that matter be not fit for he to have try and therefore accord to the case in  salk the rule ought to be make absolute Mr Dennison argue on the other side  and say that though offer be thing of a spiritual nature yet the quantum of  they must be always ascertain by custom and therefore in those case he  conceive that a prohibition will constant lie after sentence for this purpose  he cite the case of tailor and scot Lutw salk and keb he observe far that this  endowment be not set forth in the plead though it appear in the proceed of the  cause but if it have he submit it that this court will have judge not only  upon the validity but upon the construction of it and for this purpose cite  more and light Rep the chief justice say he think it very clear that the rule  ought to be make absolute with regard to that part of the suit which concern  the offer because it appear the plaintiff find his right to that entire upon  prescription and the defendant by his plea have deny there be any such right  with regard to the other part of the suit which concern the agistment he think  that there be something of difficulty but even as to that he incline that the  rule ought to be make absolute his reason be because it be uncertain upon the  face of the proceed whether the plaintiff find his right upon the endowment or  the prescription the endowment may have be throw in only to Barnardiston king  b prevent a prohibition and in the course of the evidence the plaintiff may  have make out his tithe single by the prescription judge page and judge probin  be of the same opinion in both point judge lee agree the same as to the first  of they but as to the last incline to think that the prohibition can not stand  by reason that it do not appear that the spiritual court have find their  judgement upon the trial of the custom for this purpose he cite Carth and  however he do not oppose make the rule absolute even as to this point in order  that this matter may be more solemnly determine accord the rule be make  absolute as to the whole of it vide postea