« PreviousContinue »
of the Scire facias by and against the Repre
sentative of a Party to the suit, dying after • Judgment, and before Execution. ceed upon the judgment in the scire facias. Vide Ld. Raym. 1049.
A fcire facias by executors upon a judgment obtained by the testator-demurrer inde, and it was insisted, that the practice of this court in such cases is, that the plaintiffs in the scire facias should insert the profert of letters testamen
tary, [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 are - good here ; but in C. B. this clause is always inserted in the end. Judgment pro quer. Carth. 69.
A foire facias against an administrator, tested 24th Oftober, and returnable the 311 Osober, alias scire facias tested 31
Etober, returnable 7th November ; and it was objected, that these writs were irregular, because there were not fifteen days between the 24th of Ollober and the oth of November, but adjudged well, there being eight days exclusive between the teste and return of each writ. Carth. 468.
Note : In B. R. in all cases there must be either two nihils returned to the scire facias's, or a fcire feci ; but in C. B. in case of the death of the plaintif one nihil is sufficient. Att. Praet. C. B. 337. .
But in case of the death of the defendant there must be s fcire feci, or two nihils returned. Ibid. · Ifa feme, executrix to 7. S. marries, and then such husband and wife bring debt against A. B. on an obligation in the right of the wife as executrix, and have judgment to secover the debt, damages and costs, and then the wife dies before execution sued, the husband cannot have a scire. facias upon the judgment; for that he, though he was privy to the judgment, ihall not have the thing recovered; but it belongs to the succeeding executor or administrator. Cro. Car. 207, 227. Beaumont v. Lorg, adjudged, although it was objected, that the judgment was for the costs and damages which belonged to the husband, though the debt did noti and therefore the scire facias should be for the damages : , but a scire facias being as well for the debt as daniages, it was held not maintainable; and whether he might maintain a sci. fa. for the damages and costs, they would give no opinion. Fones 248. S. C, adjudged, and laid this recovery does not turn it to the proper debt of the hosband, as
feme, executridobt against A. B. have jude
refore excculebt; damages executrix, and on an oblikach
Of the Scire facias by and against the Repres
sentative of a Party to the Suit, dying after
Judgment, and before Execution. it would if the baron and feme recovered the proper debt of the femë.
But if husband and wife obtain judgment, and the wife dies, the busband, 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 Mod.
So it'a wom, 14. 4 Leone', 337. Cro. Zus
. So if a woman obtains judginent in debt, and after mar. ries, and the husband and wife sue out a scire fucias, and thereupon have an award of execution, though the wife 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 foi. fa. made no alteration, as the execution must be on the first judgment. Woodyer v. Grenam, Salk. 116. pl. 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 dept was attached to him, jointly with his wife, so that alihough the award of the execution did not alter the nature of the debt, yet it altered the property. Carth. 415. Skin. 082. pl. 2.
If a judgment in debt is obtained against a feme fole, who afterwards marries, and then a fcire facias is thereupon brought against husband and wife; and after iwo nihils returned, judgment is given, that the plaintiff shall have judgment against them, and then the wife dies, the husband shall be liable to this execution. Carth. 30. Salk. 116. pl. 7.
So note; In the above case of Obrian and Ram, reported also in 1 Mod. 170. If judgment be against a feme sole, and she marries; and then plaintiff sues out a scire facias against husband and wife, and has judgment quod habeat executionem, against both, and afterwards the wife dies, plaintiff may sue out a scire facias against the husband, and have judge ment thereon against him.
And so vice versa in IV oodyer v. Gresham, Salk. 116. If feme fole recovers judgment, and then takes husband, and they both sue out a scire facias, and have judgment quod habeant executionem, and then the dies, the husband alone may have a scire facias afterwards, and have execution.
A fiire facias was brought against defendant as adminiftratrix of her husband, on a judgment against him for 1,500 l. and after two nihils returned, a joire fieri inquiry H4
menind fo vice verudgment, and nid have judge
was tof it, in order tiff inlifting, ibof law an evi
Of the Scire facias by and against the Repre
sentative of a Party to the Suit; dying after
Judgment, and before Execution. was taken out, and the defendant attended the execu. tion 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 devastavit was found to 1,1171. &c. In Hil. 8 Geo. 2. The appeared to the scire fieri inquiry, pleaded plene administravit, and traversed the devastavit ; and notice of trial being given and countermanded, and nothing further done on it, the, in Mich, 10 Geo. 2. moved to have the award of execution set aside, and to be adınitted 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 nihils, the court will relieve upon motion, and not put the party to an audita querela : and the state of the real aflets was proved to be 130 l. which The 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 confideration of her long acquiescence, and the several steps taken subsequent to the award of execution, they thought the came too late, and for that reason only refused to interpose. Wharton v. Richardson wid. Stra. 1075. · Note: Formerly the method was upon obtaining judge ment by default against an executor or administrator (which would reach only the goods of the testator or inteftate) and nulla bona returned to a fi. fa. sued out on such judgment, to issue out a writ to inquire, whether the defendant had wasted any of the effects of the deceased; and if a devastavit 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 de bonis propriis, to which scire facias the executor or adminiftrator could appear and plead plene administravit (as in the case above).-But now the fieri facias inquiry, and the frire facias are incorporated and made out in one writ for expe'dition. 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 fcire facias, and it be found against them. But the way is to bring an action of debt on the judgment, suggesting a devaslavit,
of Proceedings by and against Attornies. :
ATTORNIES have privilege not to be sued in any
A 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 en- . titled to the process of attachment, and may fue by attachment of privilege.
But this privilege an attorney shall not have at the King's suit. 2 Rol. Abr. 274. Bro. Super fedeas 1. 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 at... tached in his hands by foreign attachment in the sheriff's courts in London. Saund. 67. Vide Comb. 427. vie in hi n di Vide Comb no
. .is Nor in an action 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. Id, Raym. 533. Hob. 117. . Salk. 2. pl. 4.
Nor where an attorney of one court sues another of ano. : ther court, the defendant shall not plead his privilege; for '.. the attendance of the plaintiff is as necessary in his court, i as the defendant's is in his; and therefore the cause is les in gally 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 defendant attor-' ney must be fued by bill, although the plaintiff is an attora' ,. ney; 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. 10.
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. 13 El. 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.; i
Of Proceedings by and against Attornies.
defeions qui tan Rute abonnes 48. keep the westhither 1.2 Vent.
And that defendant, if entitled to privilege, may plead it. Sed per cur. These qui tam actions are never considered as the king's causes. In prosecutions at the suit of the crown,
defendants, 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. 2027, 2032. But contra in 2 Vent.. 47. and vide 1 Salk. 668. If an attorney, being plaintiff, Jay his action in Middlesex, the venue shall not be changed ;
otherwise if in London.. ::: An attorney has no privilege against the court of conscience
in London. Burr. 4 pt. 1583..
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
faid, that he shall have his privilege, so long as he con-
longer than he remains an acting attorney.
the stamp afts the rolls have been disused, and a book stamped i: 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 of action against him, however small, may fue him in the superior court, instead of
suing him in an inferior. Gardner v. Jellop, one, &c. in .C. B. 2 Wilf. 42.
An attorney must be sued by bill, though the plaintiff be also an attorney; and he cannot take out an attachment and hold the defendant 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, Stra, 1141.