case margaret hind against the bishop OF chester by Henry c the bishop of  Chester be entitle to a mortuary on the death of every priest die within the  diocese upon a suit in the spiritual court for a mortuary by custom if the  defendant plead no such custom and the court refuse the plea a prohibition  shall go Mod   Inst Carth Com dig dougl term Rep term Rep h Bl Rep after a  declaration in prohibition consultation shall not be grant upon motion before  plea or demurrer   hob Yelv b r h Cowp cro Elizabeth prohibition because the  defendant sue in the consistory court of Chester before the commissary there  for a mortuary after the death of William hind a priest of the say diocese  surmise that by custom there he ought to have for a mortuar after the death of  every priest die within the say archdeaconry of Chester the best horse or mare  his saddle bridle spur his best gown or cloak his best hat his best upper  garment under his gown his tippet his best signet or ring as to the bishop de  debt is owed consue before to put below a and recite the statute of Henry c  concern mortuaries and she aver that there be no such custom croak car there  and that she have pay a mortuary to the parson of Bumberry and that after a  prohibition the defendant have prosecute his suit there Noy attorneygeneral  move for the defendant that consultation shall be grant the first question be  this suit be for a mortuary in the archdeaconry of Chester and the doubt  whether there be a custom in that place to have such thing for a mortuary  whether this be just cause of prohibition or that this suit be for a mortuary  be mere triable in the spiritual court and it be allege on the defendant part  that this be mere triable in the spiritual court upon the statute of Artic  allotment of land which say that where a suit be for a mortuary prohibition  shall not be grant and in Fitzherbert nat short catalog Henry where custom be  allege for the payment of a mortuary it be say this custom be triable in court  Christian and Richard jurisdiction kelloway fol where suit be for a mortuary  consultation shall be award but calthrop for the plaintiff move against it and  say true it be before the Henry c if there be a suit in court Christian for a  mortuary consultation shall be grant vide Doct student fol and the book of  entry but the course be otherwise since that statute but as to the second  question whether consultation shall be grant upon a motion without answer to  the prohibition and that be move by Noy that it shall because the suit be for  a mortuary there be no cause of prohibition therefore consultation shall be  grant Jones and Whitlock justice be of opinion that a prohibition ought not to  have be grant it be a suit for a mortuary and although it be allege it be now  grantable upon the statute of Henry c they conceive that by the proviso  therein mortuaries shall be pay in the archdeaconry of Chester as before they  have be accustom so it be out of the statute and the custom for payment of  mortuaries be in question be triable in court Christian and although  prohibition have be undue grant yet it be no discretion in the court to grant  a consultation upon motion without answer but Richardson chief justice and  myself hold that no consultation ought to be grant for the surmise in the  prohibition be good that there be no such custom to a by Geo c g this mortuary  be direct to cease and a equivalent be settle upon the bishop in its stead Bl  Com croak car er p have such good for mortuaries as be surmise and that may  well be try by the course of the commonlaw for now the statute appoint what  shall be pay for mortuaries and that in the say place in Wales and the  archdeaconry of Chester such mortuaries shall be pay as have be accustom which  be issuable and triable at the commonlaw especial as this case be wherein the  plaintiff pretend and surmise that she pay the mortuaries to the parson of  Bumberry in which parish the say priest inhabit and that there be no such  custom she shall pay it to the archdeacon second we hold as this case be no  consultation ought to be grant upon motion without answer to the prohibition  because the plaintiff in her declaration upon the prohibition show croak car  that the defendant have sue after the prohibition which be a contempt and  ought to be answer but peradventure in some case when the prohibition appear  in itself to be undue grant the defendant before appearance have commit no  contempt in prosecute thereof may move to have a consultation whereupon it be  appoint that the defendant shall plead or demurrer and then the court will  give judgement upon the record before they c