case read against DEATARY a vicar can libel in the spiritual court for a  customary easter offer a prohibition shall not go after sentence if the court  have jurisdiction of the subject SC barn upon show cause why a prohibition  shall not go to the spiritual court the case be this the plaintiff below libel  for tithe for agistment of unprofitable cattle and likewise for a annual offer  of sevenpence Payable at easter and claim they as vicar of the church of  bishop Wilton tam ex endowment fundatione c how ex antiquity experience the  defendant deny the right to c in the word of the libel and sentence for the  plaintiff the suggestion for a prohibition be that the rector be entitle to  such payment and that custom be triable at commonlaw dr lee against the  prohibition the payment to the rector be a new matter not plead below and  therefore not proper to be insert in the suggestion I vent the demand here be  find on the endowment which be certain a matter of spiritual cognizance the  word ex antiquity experience be insert in all libel and be matter of form only  as to the tithe the word of the endowment be Decimus blador croftorum increase  infra lock c which extend to the present demand as to the offer the word of  the endowment be of every thing who ad alteragium pertinent a term which in  the case of turner v Andrews be construe to comprehend all ecclesiastical  demand though it seem to carry with it a more restrain sense but however as  offer can otherwise be due but by custom and a jurisdiction of proceed in such  case be certain give by the statute de circumspect to put in motion c the  Henry the Henry and the Edward the right of try custom in such case in  consequence be give to the spiritual court this motion also come too late be  after sentence cro keb Noy wright v Allen that Nov a action bring in the  admiralty upon a contract lie to be make super deeply mare and sentence give  for the plaintiff a prohibition be move for upon a suggestion that the  contract be make in the harbour of Plymouth but it be deny because that do not  appear upon the libel in which case only prohibition lie after sentence Mr  Bootle senior the contest here be between spiritual person whether the rector  or vicar be entitle and in such case the ecclesiastical court have  jurisdiction though otherwise in the case of the laity   roll Abr roll Rep  gold Bulst lev b where a defect of jurisdiction in the principal modern matter  appear in the libel prohibition lie after sentence otherwise where it be only  diminution triationis as in the principal case Mr fazakerly on the other side  as to the tithe it be plain that the demand be find on the custom and the  recovery must be accord the word of the endowment extend only to the tithe of  corn the offer can be no otherwise due but by custom and can be find on the  endowment for there must have be a usage for the payment of it antecedent to  the endowment itself and therefore this right be only triable at law beside  this be not a dispute between ecclesiastic only the defendant below be a  layman and it be not sufficient that a question arise modern er p in this case  whether the rector or vicar be entitle to the payment a prohibition lie here  after sentence as well as before salk Carth a Mr Dennison to prove all  customary due triable at commonlaw cite tailor v Scott easter term Geo b where  the libel be by the vicar of Wakefield for a customary fee of tenpence for  church woman Lutw salk keb c the commonlaw court be the proper judge of  endowment and what be grant thereby more roll Abr Litt Rep d Lord Hardwicke  chief justice as to the offer there be no doubt but a prohibition must go and  there be no difference between a defect of original jurisdiction and a defect  of power to try the suit below prohibition lie as well after sentence as  before see Inst roll Abr salk burr Cowp term Rep Com dig prohibition d e I  know no case to the contrary but that of sue out of the diocese and in that  case there be neither diminution jurisdiction nor triationis the person sue  there have only a privilege of stay the proceed against he upon a proper  application to the temporal court which be waive and no advantage can be take  thereof after sentence as to the statute which it be insist give the spiritual  court a jurisdiction in try custom upon which these due be find that way of  reason will prove that a modus for tithe be triable there tithe be always  mention among other customary due but that there can be no pretence iron as to  the point of tithe for agistment c if a special instrument of endowment have  be set out tinder which these tithe be claim to be due and it appear to we  they be not include in that endowment there can be no doubt then but that a  prohibition must go because as the demand will appear to we judicial not to be  warrant by the endowment it can only rest upon the custom and that be not  triable there the case here be not so strong because it be claim ex endowment  general et ex antiquity experience now it be possible these tithe may appear  below to be due modern by some endowment or other but however as it be not  disclose by the proceed below what the sentence be find on and it may be one  as well as the other a prohibition ought to go or otherwise the spiritual  court by this general way of libel may try custom triable at commonlaw only  without be subject to any restraint by prohibition after sentence be once give  lee justice the sentence give in this case be no objection at all to the grant  prohibition as to the tithe for agistment c I doubt whether we can now grant  prohibition because it do not appear but that the sentence may be warrant by  some endowment or other the inconvenience of suffer such general allegation in  libel seem not so great as be apprehend because the party may immediate apply  for a prohibition when the spiritual court begin to proceed against he upon  the custom as to the offer that be a thing mere customary be not within their  cognizance the statute cite in maintenance of the jurisdiction below empower  the spiritual court to proceed and give sentence as well for customary due as  tithe but still that be subject to trial of custom accord to the course of the  commonlaw and if the custom be find in favour of the person who libel then a  consultation go and they may give sentence and execute the authority which be  give by those act of parliament Lord Hardwicke chief justice what be say by my  brother lee about a prohibition not go after sentence in this case as to the  demand for tithe seem very material let there therefore be a declaration in  prohibition that this matter may come proper before the court by demurrer  modern er p