Free, D. D. against Burgoyne
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1827 |
| Date | 01 January 1827 |
| Court | Court of the King's Bench |
English Reports Citation: 108 E.R. 550
IN THE COURT OF KING'S BENCH.
free, D.D. against bukgoyne. 1827. The plaintiff in prohibition is not entitled to costs, except in eases provided for by the statute 8 & 9 W. 3, c. 11, s. 3; and where the judgment on demurrer to a declaration in prohibition was, that a writ of prohibition issue as to proceeding on part of the matters contained in the libel, with a view to a particular object, and a writ of consultation as to proceeding upon them for any other purpose, and as to all other matters in the libel: Held, that this was not within the statute. In this case the Court gave judgment on demurrer to a declaration in prohibition, that a writ of prohibition should issue as to proceeding against the plaintiff for fornication or incontinence, for the purpose only of his soul's health, and the reformation of his manners; and that a writ of consultation should issue as to proceeding against the plaintiff for those offences, for the purpose of suspension or deprivation, or other punishment merely clerical, and also as to all other matters charged against the plaintiff in the libel in the Court below. The judgment was completed, and a writ of consultation issued (a).. A writ of error was brought, which was still undetermined, the clerk of the errors having declined to make the transcript, because the judgment so completed on the roll had no award of costs. The plaintiffs attorney then took out an appointment to tax costs. The defendant's attorney contended against the liability to pay costs, and protested against the allowance thereof, on the ground that he had obtained a writ of consult-[539]-ation as to all the articles charged in the libel, though with a restriction as to the sentence; yet the officer of the Court taxed, and allowed the plaintiff full costs. A rule nisi had been obtained for rescinding and striking out of the record the allowance of costs. Denman now shewed cause. The words of the statute 8 & 9 W. 3, c. 11, s. 3, are, " That in all actions of debt upon the statute for not setting out tithe, &e., and in all suits upon any writ of scire facias, and suits upon prohibition, the plaintiff obtaining judgment, or any award of execution after plea pleaded or demurrer joined therein, shall likewise recover his costs of suit; and if the plaintiff shall become nonsuit, or suffer a discontinuance, or a verdict shall pass against him, the defendant shall recover bis costs," &e...
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John Tallis against Frederick Tallis
...carried on the trade or business of publishers of books and other publications in copartnership, (a) Free v. Burgoyne, 5 B. & C. 400 ; 6 B. & C. 538. lfL.HK.tn. TALLIS V. TALLIS 483 and, among other parts and branches of the said trade or business, a certain part or branch thereof known and......