case netter against PERCIVALL brett vide ante a will of personal effect can  only be prove in the spiritual court a will concern land and good if it be one  and entire ought also to be prove there a will of land only may be prove there  but not as a matter of right ante Com dig Com dig Com dig Powel on devise this  case be argue by the justice seriatim Jones and Berkley agree that  consultation shall be grant to prove the will because it be one entire will  although it be make as several will for that he first make his will concern  his good and make the defendant his executor and appoint therein diverse  legacy and after in the same paper leave the space of a line void he write in  this manner that if his personal estate shall not suffice to satisfy his  legacy and debt he appoint part of the profit of the land to his executor for  a time and in the conclusion of the will in witness whereof to this my will I  have put my hand and seal and thereto subscribe his name and put his seal so  it appear to be all one entire will and therefore Berkley justice say that he  will insist upon two rule first that the probate of testament for personal  thing appertain only and proper to the spiritual court and for the probate of  such testament no prohibition lie a second that the probate of testament  concern land only and no good contain therein ought not to be prove in the  spirit all court by compulsion although they may be prove there and if there  be a suit to compel any to prove such testament croak car in the spiritual  court a prohibition lie and common such will where the land be devisable by  custom be prove before the ordinary and therefore the register mention that  will of land in London be first prove before the ordinary and after before the  mayor in the husting a and in borough a devise of land by custom be as a  devise of chattel and so term and repute a ante a   Eq can a r   light a Inst  dal car c croak car er p then when a will be concern land and good and be one  entire will as the conclusion of this will make it and in the will of the land  be a clause that the profit of the land shall be for the performance of the  will so as it be a mix will it be reason it shall be prove entire in the  spiritual court to enable the executor to sue for debt and to expedite the  payment of the legacy which otherwise may be long delay and the probate of the  will for the land will not prejudice the heir for it shall not be evidence at  the commonlaw nor the witness be there examine their examination shall be give  in evidence at the commonlaw and he cite the resolution and agreement of all  the judge before the king that where a testament be make of land and good no  prohibition lie to stop the probate of the say testament for the good and that  in such case the testament be mix of land and good probate shall be of the  entire will and ought not to be of parcel and be likewise cite the case  Elizabeth dyer that land be devise to be sell for payment of legacy the land  be sell the suit for the money to be distribute may be in the spiritual court  contrary to the opinion in Phil mary although it be rise out of the land and  Jones justice agree with he in respect of the inconvenience which otherwise  may ensue if the probate of the testament for the good shall be defer and they  both hold that a consultation shall be award and although it be here grant  upon motion without special plead and demurrer yet he say it be good enough  for ancient in this court there be no declaration and suggestion upon  prohibition but they be grant upon motion and consultation be grant upon  motion without demurrer as in the common plea but I argue to the contrary  first that the prohibition be well grant and upon good ground and therefore a  consultation ought not to be award second if it shall be award yet it ought to  be after plea and demurrer so as the matter may appear in plead for what cause  it be grant to the first that it be well grant because the prohibition as it  be draw and grant do allege that the testament be make of the land and no  mention of the good and thereby be endeavour to make a probate of this  testament which concern land only and so to draw into question layman fee and  always in such case a prohibition be grant and whereas in the register it be  say that the probate of testament in London be first before the ordinary and  then in the husting it be answer that be allege to be by special custom which  prove that without special custom it ought not to be prove there and to the  resolution of the justice that a prohibition shall not be grant to stop the  probate of a testament for good where it be make for land and good that do not  prove that a prohibition may not be grant to stop the probate of a testament  for land and as my brother Berkley say croak car testament of land only shall  not be prove in the spiritual court and a prohibition shall be grant if they  so do so here for any thing which appear to the contrary and as it be suppose  in the prohibition the court as judge can take conusance that it be otherwise  and although the copy of the testament be show unto we that it be in one  entire paper and one seal and the other circumstance before mention yet that  be but private information of which we be not to take cognizance as of matter  of record and I assent to the case in Elizabeth but upon this reason because  the land be sell the money be personal and asset in the band of the executor  so as it savour not of the realty be execute second I hold that if  consultation shall be grant it ought not to be in this manner contrary to the  usual course upon a motion without plead and demurrer and as it be here upon a  interlocutory speech at the bar only the ground thereof not appear of record  and inconvenience will ensue if such course shall be suffer for the party may  be prejudice and peradventure erroneous and yet he shall not have his writ of  error and for this very cause diverse precedent have be where probibitions be  grant as in the case of the marquis of Winchester a Lloyd v Lloyd b Westlys  case c and hill v Thornton d where a prohibition be grant a   b mich Elizabeth  roll c ante d ante croak car er p and a trial bad whether it be a good will  and find good yet a consultation be grant only for the good but here in this  case a consultation be grant general