case stedman who tam c vers hay in c b when a prescription for a seat in a  church be find by the verdict the repair which be only a circumstance  requisite to support the prescription be of necessity include this be a  prohibition upon a libel in the spiritual court by the defendant for that the  plaintiff sit in primo tertio region in seat in the church of Abberley in  Worcestershire which place the defendant claim one as belong to a message or  tenement name crowlands the other to a message or tenement name Nurtons the  plaintiff in his declaration in prohibition declare that all prescription  ought to be determine by commonlaw that I farmer and Susan his wife in right  of the wife be seize of a message and land call Southalls in Netherton in the  say parish of Abberley in fee and that time out of mind there have be a  ancient seat in Boreali part church de Abberley and that the say farmer and  his wife and all c prescribe to have use primi third loci in seat pry the  second place belong to the defendant as tenant of Nurtons and because comens  the plaintiff as tenant of Southalls use those seat the defendant libel  against he in the spiritual court the defendant plead that he have a faculty  grant for those place and traverse without hoe quod farmer wife all men c a  tempore c habuer use pillage primi third loci in seat there issue be join upon  the traverse and a verdict for the plaintiff and now sergeant Pengelly move in  arrest of judgement that the plaintiff do not allege in his declaration any  usage to repair the seat for of common right all the seat inthe church belong  to the parishioner in general who be bind to repair the church but for the  better order and to prevent the confusion which will follow if every  parishioner sit where he please the ordinary have be allow to dispose of the  seat and no prohibition ought to be grant in such a case but where a man have  always repair a particular seat be may prescribe for that and the usage of  repair be the foundation of such prescription without which it will be void  and so it be resolve cro Noy which seem to be the same case that if a man time  out of mind have use to repair a seat in the isle of the church and to sit and  bury there the isle shall be peculiar to his message and be shall not be  displace by the ordinary parson or churchwarden but usage of sit and bury  without usage of repair do not give any property and therefore no body can  prescribe for a seat in the body of the church for it be always repair by the  parishioner more   godb S c Inst a but where sir Bernard whetstone have time  out of mind use to repair a pew in the body of the church he be allow to  prescribe for it hob so a custom for the churchwarden to dispose of the seat  in the body of the church be disallow where the parishioner repair the church  lev so where the isle c have always be repair at the common charge of the  parishioner the seat there shall be dispose of by the ordinary as well as in  the body of the church cro and in ancient time a comens custom to repair be  allege in a action on the ease for disturb a man in his seat in the church cro  bridge palm Ro Rep S c a but of late time it have be hold that there be no  occasion to allege it in the declaration but that it be sufficient to give it  in evidence at the trial and after a verdict it shall be presume to be well  prove otherwise the verdict can not have be for the plaintiff lev keb raym SC  t r b side and the distinction there be take between a action upon the case  and a prohibition for in a prohibition it be say that custom to repair must be  allege in the declaration and hale think there be good ground for that  distinction for a action upon the case be against a wrongdoer and stranger a  prohibition against one who prima fancy have a right and this distinction be  cite and agree to Jon lev and it be agree on the other side that usage of  repair be necessary without which there can be no prescribe for a seat in a  church and perhaps if the defendant have demurrer to the declaration it will  not have be good but when the defendant have plead and traverse the  prescription which be find for the plaintiff which can not have be find unless  a custom of repair have be comens er p prove the declaration shall be aid as  in trespass and other action where the declaration be uncertain or  insufficient it shall be aid by the plea of a collateral matter and a verdict  for the plaintiff Lut salk and the custom to repair be only a circumstance  requisite to support the prescription and when the prescription be find the  repair be of necessity include afterward p Geo judgement be give for the  plaintiff for after a verdict it shall be presume that a good prescription be  prove