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Of the Scire facias by and against the Representative of a Party to the suit, dying after • Judgment, and before Execution.
eeed upon the judgment in the scire facias. Vide Ld. Raym. 1049.
A scire facias by executors upon a judgment obtained by the testator—demurrer indt, and it was insisted, that the practice of this court in such cafes is, that the plaintiffs in the scire facias should insert the prosert of letters testamentary, [this clause being omitted] and that the writ is not good. To which it was answered, that it was inserted at the end, and that is the practice of B. R.—Per cur. Both forms arc good here; but in C. B. this clause is always inserted in the end. Judgment pro quer. Carth. 69.
A scire facias against an administrator, tested ttfh October, and returnable the 3 iy? October, alias scire facias tested 317? October, returnable jth November; and it was objected, that thefe writs were irregular, because there were not fifteen days between the 24th of October and the yth of November, but adjudged well, there being e;ght days exclusive between the tefte and return of each writ. Carth. 468.
Note: In B. R. in all cafes there must be either two nihils returned to the scire facias' s, or a scire sed; but in C. B. in case of the death of the plaintiff'one nihil is sufficient. Ait. Pract. C. B. 337. - ,
But in cafe of the death of the desendant there must be a scire sect, or two nihils returned. Ibid.
If a feme, executrix to J. S. marries, and then such husband and wise bring debt against A. B. on an obligation in the right of the wise as executrix, and have judgment to recover the debt, damages and costs, and then the wise dies before execution sued, the husband cannot have a scire facias upon the judgment; for that he, though he was privy to the judgment, shall not have the thing recovered; but it belongs to the succeeding executor or administrator. Cro. Car. 207, 227. Beaumont v. Long, adjudged, although' it was objected, that the judgment was for the colh and daiuega which belonged to the husband, though the debt did not; and therefore the scire facias should be for the damages:but a scire facias being as well for the debt as damages, it was held not maintainable; and whether he might maintain a j'ci. fa. fox the damages and costs, they would give no opinion. Jones 248. 5. C, adjudged, and /aid this recovery does not turn it to the proper debt of the hnlband, as
Of the Scire facias by and against the Representative of a Party to the Suit, dying aster Judgment, and before Execution.
it would if the baron and seme recovered the proper debt of the seme.
But if husband and wise obtain judgment, and the wife dies, the husband, without taking out administration to her, may have a scire facias; for by the judgment it is become a debt to him. Sid. 337. Cro. El. 844. 3 Mad. 188. 2 Lion. 14. 4 Leon. 186.
So isa woman obtains judgment in debt, and after marries, and the husband and wise sue out a. scire facias, and thereupon have an award of execution, though the wise dies, yet the husband [without taking out administration] may have execution upon the judgment, for the award upon the sci. fa. attached in the husband and shall survive, though objected, the award on the sci, fa. made no alteration, as the execution must be on the first judgment. IVcsdyerv. Grrjbam, Salk. 116. pi. 7. and Comb. 455. S. C. by which it appears, that the year expired before the sci. fa. taken out; and said by Holt, ch. just. That the debt was attached to him, jointly with his wise; so that although the award of the execution did not alter the nature of the debt, yet it altered the property. Carth. 415. Stin. 682. pi. 2. "if a judgment in debt is obtained against a seme solet who afterwards marries, and then A scire facias is thereupon brought against husband and wise; and after two nihils returned, judgment is given, that the plaintiff shall have judgment against them, and then the wise dies, the husband shall be liable to this execution. Cartb. 30. Salt. u6. pi. 7.
So note; In the above case of Obrian and Ram, reported also in 1 Mod. 170. If judgment be against a seme sole, and she marries; and then plaintiff sues out a scire facias against husband and wise, and has judgment quod habeas executionem, against both, and afterwards the wise dies, plaintiff may sue out a scire facias against the husband, and have judgment thereon against him.
And so vice verfa in Woodyer v. Gresbam, Salk. 116. If seme sole recovers judgment, and then takes husband, and they both sue out & scire facias., and have judgment quod haleant executionem, and then she dies, the husoand alone may have a scire facias afterwards, and have execution.
A scire facias was brought against desendant as administratrix of her husoand, on a judgment against him for 1,500/. and after two nihils returned, a Jcirt fieri inquiry
H 4 was
Os the Scire faciasby and against the Representative of a Party to the Suit, dying after Judgment, and before Execution.
was taken out, and the desendant attended the execution of it, in order to lay the state of the assets before the jury; but the plaintiff insisting, that the award of execution on the former writs was in point of law an evidence of assets, a devajlavit was found to 1,117 /. &c' ^n &i?• 8 Geo. 2. she appeared to the scire fieri inquiry^ pleaded plene administravit, and traversed the devajlavit; and notice of trial being given and Countermanded, and nothing surther done on it, she, in Mich. \oGeo. 2. moved to have the award of execution set aside, and to be admitted to plead; it being to no purpose to expect relief upon the trial of the traverse; and cited Salk. 93. 264. to shew, that where there has been no scire feci, and only two nibils, the court will relieve upon motion, and not put the party to an audita querela: and the state of the real assets was proved to be 130 /. which fiie offered to deliver up, and be examined upon interrogatories, if the plaintiff was dissatisfied with the account. The court was greatly inclined to relieve her; but upon consideration of her long acquiescence, and the several steps taken subsequent to the award of execution, they thought she came too late, and for that reason only resused to interpose. Wbarton v. Richardson void. Stra. 1075.
Note: Formerly the method was upon obtaining judgment by desault against an executor or administrator (which would reach only the goods of the testator or intestate) and nulla bona returned to a si. sa. sued out on such judgment, to issue out a writ to inquire, whether the desendant had wasted any of the effects of the deceased; and if a devajlavit was found by the inquisition and returned thereto, then for the plaintiff to proceed by scire facias for the defendant to shew cause why the plaintiff should not have judgment it bonis propriis, to which scire facias the executor or administrator could appear and plead plene administravit [as in the case above].—But now the fieri facias inquiry, and the scire facias are incorporated and made out in one writ for expedition. However this method, though much better than the old one, is seldom pursued at this day, as it does not answer to the plaintiff if the debt is but a small one, because no costs are allowed against the executor or administrator, unless they appear and plead to the scire facias, and it be found against them. But the way is to bring an action of debt on the judgment, suggesting a devajiavit.
Of Proceedings by and against Attornies. •'
ATTORNIES have privilege not to be sued in any . other courts except those in which they are sworn and admitted, because of the prejudice that may accrue to • the business of those courts in which their attendance is required; neither are they to be held to special bail, because they are obliged to attend, and therefore are presumed to be always amenable: also, as officers of the court, they are entitled to the process of attachment, and may sue by attachment es privilege.
But this privilege an attorney shall not have at the King's suit. 2 Rol. Abr. 274. Bro. Supersedeas I. 9 Hen. 6. 44. Nor unless there be the same remedy in his own court; therefore he shall not have his privilege when money is attached in his hands by foreign attachment in the sheriff's courts in London. Saund. 67. Vide Comb. 427.
Nor in an aclion real against an attorney of the King's Bench. Saund. 67.
Nor in appeal against an attorney of the Common Pleas. Saund. 67.
Nor when he sues, or is sued in auter droit, as executor or administrator. 12 Mod. 316. Ld. Raym. 533. Hib.iij. Salk. 2. pi. 4.
Nor where an attorney of one court sues another of another court, the desendant shall not plead his privilege; for the attendance of the plaintiff is as necessary in his court, as the desendant's is in his; and therefore the cause is legally attached in the court where the plaintiff is an officer. Rol. Abr. 275. Moor 556. 2 Mod. 298. 2 Lev. 129.
But quære, as to this, for it seems, the desendant attorney must be sued by bill, although the plaintiff is an attorney j and therefore he must be sued in his own court. Stra. 1141. Barnes 43, 44.
Nor when he joins, or is joined, in the same action with others. Vent. 298. Dyer 277. Godb. io.
One attorney sued another attorney of the same court by attachment of privilege, and on motion the proceedings were stayed. Barnes 44.
An action on a penal statute, viz. I3.fi/. for entering a fraudulent judgment against an attorney of C. B. was commenced by original; on which he moved to stay proceedings, insisting he ought to be sued by bill. On shewing cause, it Was urged, that this was a prosecution for the crown.
Of Proceedings by and against Attornies.' •'.
And that desendant, if entitled to privilege, may plead it. Bed per cur. These qui tam actions are never considered as the king's causes. In prosecutions at the suit of the crown, desendants, though acquitted, can have no costs; but in actions qui tam it is otherwise. The proceeding by original is irregular. Rule absolute to stay proceedings. Britton qui tam v. Teasdale, Barnes 48.
An attorney has privilege to keep the venue in Middlesex when he is plaintiff, but not to change it thither when he is defendant. Burr. 4 pt. 1027, 2032. But contra in 2 Vent. 47. and vide 1 Salk. 668. If an attorney, being plaintiff, lay his action in Middlesex, the venue shall not be changed j otherwise if in London. ', . ,
An attorney has no privilege against the court of conscience in London. Burr. 4 pt. 1583.
An attorney, being executor or administrator\ shall not sue or be sued as a privileged person. 1 Ld. Raym. 533.
An attorney may have his privilege in suing a member of the university. Ld. Ray. 342. ','
If an attorney absent himself for a year together, and .'• does not give his attendance, he loses his privilege. Att. Pract. 51. Scd vide, ibid. And Lutw. 1667. where it is said, that he shall have his privilege, so long as he con. tinues an attorney en record, though he do not practice.
But by Burr. 4 pt. 2113, 2116. Privilege continues no longer than he remains an acling attorney.
Anciently rolls were kept of attornies in B. R. but since the samp acls the rolls have been disused, and a book stamped hath been kept, and the attornies names entered therein. Stra. 77. But in C. B. there is a regular record kept of the attornies. ibid.
The privilege of an attorney is the privilege of the court he 'belongs to, and not his own personal privilege; and he may wave it. Burr. 4 pt. 2113. that is, when he is plaintiff.
But an attorney cannot waive his privilege of being sued by bill. And one having cause os action against him, however small, may sue him in the superior court, instead. of suing him in an inferior. Gardner v. Jefiop, one, t£c. in
c. B. 2 mis. 42.
An attorney must be sued by bill, though the plaintiff be also an attorney ; and he cannot uke out an attachment and hold the desendant to bail, as he does in the case of common persons; therefore this case is an exception out of the rule, that privilege takes away privilege, Stfa. 1141.