Middleton and Croft
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1815 |
| Date | 01 January 1815 |
| Court | Court of the King's Bench |
English Reports Citation: 95 E.R. 255
IN THE COURT OF KING'S BENCH, AT WESTMINSTER
[395] michaelmas term, 10 & 11 geo. II. 1737, B. R. Sir William Lee Knt., Chief Justice. Sir Francis Page, Knt., Sir Edmund Probyn, Knt., Sir William Chappie, Knt., Justices. Dudley Ryder, Esq., Attorney-General. John Strange, Esq., Solicitor-General. middlkton and croft. Prohibition by husband and wife not abated at common law by the death of the husband; and if it were, the action surviving, it waa aided by stat. 8 & 9 Will. III. c. 11. The plaintiff in prohibition, although succeeding only in part, is entitled to costs from the original motion for the prohibition. Ante, 326, but not S. P. 2 Stra. 1056. Andr. 57. 2 Barnard. B. R. 351. 2 Atk. Rep. 650. 2 Kel. 148, pi. 124. 4 Vin. Abr. 320, pi. 14, S. P. Plaintiffs, husband and wife, declared in prohibition about a suit brought against them in the Spiritual Court for a clandestine marriage, without banns or licence, and at uncanonical hours; and upon demurrer to the declaration, judgment was given last Michaelmas term, that a consultation should go as to the marrying without banns or licence, and the prohibition to stand as to so much of the suit as was for marrying at uncanonical hours. After which judgment, the husband being dead, application was made to the Court that the wife might have her costs; but the husband's death not being suggested on the roll, the Court would do nothing in it. A suggestion of the husband's death waa then made upon the roll, and the Court again moved that the Master might tax costs for the wife, and thereupon three questions arose. [396] 1st, whether by the death of the husband, this suit in prohibition be abated, or if it survives to the wife. 2dly, supposing it not abated, then whether the plaintiff having only obtained a prohibition as to a small part, and a consultation being awarded for the rest, the plaintiff be entitled to any costs by virtue of the statute 8 & 9 Will. III. e. 11, s. 3. 3dly, if entitled to costs at all, whether it be to costs from the time of the first motion, or only from the declaring the prohibition. As to the second point, the case of Dr. Bentleyand The Bishop of Ely (I)2, was cited (I)1 This judgment, although on verdict, is to be considered as interlocutory, see the report of the same case, Andr. 19; also Cro. Eliz. 82; also a judgment quod computet. 1 Bk. Judgments, 6; also Co. Ent. 46 b. Rast. Ent. 17. And for a full view of the record and proceedings in account, see 3 Wils. 73, et seq., and the authorities there cited. Account, and not aasumpsit, seems to be the proper action on a running account between a merchant and a broker, 2 Campb. 238; but as this proceeding is...
To continue reading
Request your trial