Fraudulent ali feat mortuaries. fhall be folely in the fpiritual court, as the recovery of the mortuary was before. Watf. c. 53. In the cafe of fobnfon and Oldham, M. 12 W. A prohibition was moved for, to be directed to the spiritual court, to ftay a fuit there for a mortuary, upon a fuggeftion of the ftatute, and that there was no cuftom in this case for the payment of it; and it was urged, that no mortuary was due but by cuftom; and therefore the cuftom here being denied, they ought not to proceed in the fpiritual court. Against which, it was argued, that the ftatute of Hen. 8. hath faved the jurifdiction to the fpiritual court, where mortuaries have been ufually paid; befides, they ought first to plead in the fpiritual court, that there is not any fuch cuftom; and then, upon refufal to admit the plea there, is the time to move the court of king's bench, and not before: but in this cafe they have not pleaded this matter in the fpiritual court. And by Holt chief justice; a prohibition cannot be granted, without a denying of the custom in the fpiritual court, which is not done here.(f). And the whole court feemed to be against the prohibition. And a rule was made to hear counsel on both fides. And afterwards the rule was discharged by the court. L. Raym. 609. But if the cultom be denied, and the spiritual court will not admit that plea, a prohibition will go; and they shall not try the custom there. Cro. El. 151. But where the cuftom of paying a mortuary was owned, and the only queftion in the fpiritual court was, whether it belonged to the vicar or impropriator, a prohibition in such cafe hath been denied. 1 Keb. 919. In the cafe of Torrent and Burley, M. 13 G. In the exchequer a bill was brought to difcover, whether the defendant's husband died worth 40 l. fo as to be liable to pay the plaintiff a mortuary; and pray relief. Upon anfwer, admitting affets, but denying the cuftom, the plaintiff went into a proof of his right; and several witnesses were examined on both fides. And at the hearing, the bill was difmiffed with cofts, as to the relief; becaufe that was properly at law, or in the fpiritual court; and in a bill against one perfon only, the right could not be established. Str. 715. 4. By the 13 El. c. 5. All alienations of lands or goods, enations to de- to defraud creditors and others of their juft debts, damages, penalties, forfeitures, heriots, mortuaries, and reliefs, shall (as against fuch claimants) be utterly void and of none effect. (f) 12 Mod. 416. END OF THE SECOND VOLUME, ༣ |