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Priest and King in an action of—which was entered between them Trin. 21 Iac. Rot. 3595. and this was debated between the Iudges and the Pro∣thonotaries, and the case was, that two were bound for the appearance of an other, and judgement was given against the debtor, now if upon the capias he come and
offer his bodie, and the Plantiff refuse that, yet that discharges the sureties; but the Prothonotaries said, that notwithstanding this refusal he may take a Capias against him within the year, because that at the first he might have had a fierie fa∣cias, or an elegit quere of that; but Winch thought that in this case, he ought to have a fierie facias, but if he had come upon the Capias, and had no suer••tes and he refuse to take him, and this is so entred now quere, if he had not discharg∣ed him.
Hendon moved the Court for a prohibition to the spiritual Court, and suggested that one had libeld in the spiritual Court for a legacie, and the Executor shewed that he had not assets to discharge the debts of the Testator, and that Court would not allow this allegation, and upon this he prayed to have a prohibition: and it was the opinion of the Court, that no prohibition shall be granted, for the legacie is a thing meerly which is determinable in the spiritual Court, and no other Court may have Conusance of that, and this is also a thing which doth consist meerly in the discretion of the Court; and resolved that in a thing which meerly doth rest in discretion of the Court, in this case no prohibition shall be granted.