case sanderson versus clagget in b r stram procuration be due of common right  for the bishop or his vicar the archdeacon instruct the clergy and proper  suable for in the ecclesiastical court bishop of saint David v Lucy ld ray dr  clagget archdeacon of Sudbury in Suffolk commence a suit in the consistory  court of the bishop of Norwich for the annual sum of S d as a procuration or  proxy due to the archdeacon for visitation the libel be by dr clagget  archdeacon of the archdeaconry of Sudbury in Suffolk in the cathedral church  of the holy Trinity in Norwich of the foundation of king Edward VI exhibit  against sanderson as a proprietor or curate of the appropriate rectory of  Aspal in Suffolk which be within the archdeaconry of Sudbury allege that the  archdeacon of Sudbury be of common right by endowment or custom entitle to the  yearly sum of S d for procuration issue out of the appropriate church of Aspal  and that sanderson the proprietor or curate of that church refuse to pay it  upon which sanderson apply to b b for a prohibition and suggest peer William  that this rectory of Aspal be time out of mind a rectory impropriate without  any vicar endow that all the tithe and profit within this rectory time out of  mind belong to the proprietor thereof who at his own expense use to provide a  curate to celebrate divine service in the parish church of Aspal the court of  b r have grant a prohibition nisi I come to show cause against it and urge  that of common right every parochial church pay procuration or some annual sum  in lieu thereof to the ordinary or archdeacon that accord sir John Davis in  his case of proxy fol say procuration or proxy be as much due to the superior  clergy the ordinary or archdeacon who be the ordinarys vicar as tithe be of  common right due to the inferior clergy that proxy and tithe concur in all  point for saint as the instruction of layman be the origin of pay tithe so the  visitation of the ordinary or of his vicar the archdeacon which be accompany  with instruction be also the origin of parson pay procuration dly that as a  layman can prescribe in nonpayment of tithe so the parson himself at least by  the commonlaw can prescribe in not pay of procuration and dly that as unity of  possession do not extinguish the right of tithe so neither do the unity of  possession extinguish the right of procuration the unity of possession as to  procuration in sir John davis report happen in this manner a proxy of S per  annum be issue out of a impropriate rectory Payable to a religious house both  of they come to the crown in feesimple and this wonder as hold only a peer  William suspension and no extinguishment now if the payment of procuration  from every parochial church be of common right then the party contend against  common right ought to come with some affidavit to support his suggestion for a  prohibition videlicet that his impropriate rectory have be hold and enjoy free  from the payment of any procuration and repute of right to be so this be  express say in salk Godfrey v lewellin where it be declare by holt c I that if  the matter suggest for a prohibition appear on the face of the libel the court  will not require a affidavit ante Anonymous case where the same rule be say to  be observe in chancery but where the matter do not appear upon the libel in  such case the other side ought to have a affidavit of the truth of this  suggestion a strong ought it to be so in this case where the matter suggest  for the prohibition be contrary to the libel and against common right and  indeed if a bare suggestion will do without a affidavit none can fail of a  prohibition whereby the hand of the spiritual court will for some time at  least be tie up but sure this suit for procuration be proper for the spiritual  court the duty sue for procuration be a spiritual duty it be claim by a  spiritual person the archdeacon and in this case though a unnecessary  ingredient it be claim from a spiritual person the curate of the parish of  Aspal who in his suggestion for the prohibition give himself the addition of  clergyman peer William er p it must be admit the manner of this archdeacon  entitle himself by the libel to the procuration of S d be by several way of  common right by custom or by endowment and with submission every one of these  title be triable by the peer William spiritual court for as they have  cognizance of the principal so have they the cognizance of the accessary and  that the spiritual court may try a custom relate to a ecclesiastical duty or  procuration or that a pension claim by a spiritual person by prescription may  be sue for in the spiritual court be hold vent vent William v bind salk Jones  v stone and note that in I vent and salk Lord coke opinion in Inst to the  contrary be deny to be law so a modus kill may be sue for in the spiritual  court and every modus must be ground upon a custom there be indeed a act of  parliament relate to this matter of proxy the and Henry can which recite that  several bishop and archdeacon have pension and proxy out of religious house  upon the dissolution of these religious house and on their possession be vest  in the crown such bishop and archdeacon have be disturb in the enjoyment of  their pension and proxy notwithstanding the save in the act of dissolution of  the right of all person other than the founder for remedy whereof it be enact  that where any of the bishop or archdeacon have be seize of pension and proxy  within ten year next before the dissolution of these religious house such  bishop and archdeacon shall recover the same in the spiritual court with their  damage and cost now this act show that we be in a proper court while we be sue  in the spiritual court for procuration but it may be object that it ought to  be say in the libel that this proxy of S d be pay within ten year before the  dissolution of the religious house to which this appropriate rectory do belong  peer William to which we answer that this proxy of S d be say to have be pay  time out of mind and if so then it must have be pay within ten year before the  dissolution of the abbey c it may also be object that it seem impossible the  archdeacon of Sudbury can be seize of this procuration of S d ten year before  the dissolution of the religious house to which this appropriate rectory do  belong forasmuch as upon the face of the libel it appear that this very  archdeaconry be find after the dissolution of the abbey videlicet in Edward  the this time answer all that appear by the libel be that the cathedral church  of the holy Trinity of Norwich be find in Edward the this time but the  archdeaconry of Sudbury may be find long before of this opinion be Mr justice  Eyre who cite the dean and chapter of IV norwich case   beside if proxy be due  from all parish of common right as plain they be they must consequent be as  plain due and Payable to some person or other to so e archbishop bishop or  archdeacon within who jurisdiction this church then be before the foundation  of the archdeaconry and it seem sufficient if the proxy of S d be Payable to  some person or other neither can it be think that the bishop of Norwich claim  it for it be in the bishop of norwich own court that the archdeacon sue so  that it be evident proxy be due to somebody in this case and as evident that  no person claim they but the archdeacon therefore they ought to be pay to he  peer William but far our title in the libel be not lie to be by custom only  but by endowment and if as the fact be and we can prove that for fifty sixty  or seventy year and by ancient book in the register office belong to the  archdeaconry this sum of S d have be pay it seem to be good evidence of a  endowment though the write of such endowment be lose and this title of  endowment be proper triable in the spiritual court upon the whole matter I  hope the court will not grant this prohibition it be but a small matter in  controversy S d a year it be plain proper for the ecclesiastical court the  nature of the duty be ecclesiastical it be claim by a ecclesiastical person it  be also claim from a ecclesiastical person for all which reason it be sure  proper to be sue for there it be move again on another day all the court  videlicet Pratt chief justice powys Eyre and fortescue justice discharge the  rule for a prohibition and deliver their opinion seriatim saint that this be a  ecclesiastical duty and therefore proper sueable for in the spiritual court  peer William er p dly that it be claim both brand from a ecclesiastical person  which make it the strong dly that though there be a impropriation in the case  still there must be a curate to take care of the soul of the parish and that  curate as well as other person must stand in need of bishop or archdeacon  instruction and visitation consequent peer William thly that the ordinary or  archdeacon ought to be allow for his procuration what have be usual pay for it  which here appear to be S d thly that where a thing be claim by custom in the  spiritual court it must be intend accord to their construction of a custom and  by their law forty year make a custom or prescription Inst thly that the  payment of S d for or year be a evidence of a immemorial payment but if it can  not be strict memorial as take the archdeaconry to have be find in Edward the  this time still since that period it may come due by endowment which may in  this distance of time have beer lose memorandum in this case a prohibition  have be move for in vacation before the master oh the roll who first grant it  nisi causan but afterward upon motion incline to think proxy due of common  right and though this proxy can not have be due time out of mind to the  archdeacon of Sudbury if that archdeaconry be find in Edward the this time yet  be due to some person or other time out of mind it may afterward come by  endowment to the archdeacon and that this be to be presume from the payment to  such archdeacon for seventy or eighty year