#### Watkin’s case.

Pasch. 2 Car.

EXECUTOR of an executor was sued for legacies, and pleaded non assets. The plea was rejected in the spiritual court, and a prohibition out of the King's Bench was awarded in King James' time.

Per Curiam.

It is discontinued. They took a distinction where a prohibition is awarded out of the Common Bench, or out of the King's Bench. No prohibition issues out of the Common Bench, without a suggestion of record; and therefore it *115is the suit of the party. But if it is awarded without any suggestion of record; in such a case it is only a prohibitory commission. There is also this other difference, when a prohibition issues out of the King’s Bench, if there be no other process, it is discontinued by the demise of the King. But if attachment issues, and is returned, or the party appears and puts in bail, then it becomes *the suit of the party, and is not discontinued by the King’s desire. But here there is no process, but only a prohibition awarded.

Athoe. A prohibition is a suit, for the party may be non suited.

Doderidge, J.

It has been adjudged that an action upon the statute de scandalis magnatum, although it be tam pro domino rego quam pro se ipso is not discontinued by the King’s demise. For the contempt of the King is collateral. But when the King occovers part, then it is discontinued by the demise of the King. One cannot be nonsuited on a prohibition if there be no other process, &c.

Jones, J. assented.

Palm. 422. Bendl. 163. 170. Noy 70. 3 Bulst. 314.