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Of the Scire facias by and against the Representative of a Party to the fuit, dying after Judgment, and before Execution.

ceed upon the judgment in the feire facias. Vide Ld. Raym. 1049.

A feire facias by executors upon a judgment obtained by the teftator-demurrer inde, and it was infifted, that the practice of this court in fuch cafes is, that the plaintiffs in the feire facias fhould infert the profert of letters teftamentary, [this claufe being omitted] and that the writ is not good. To which it was anfwered, that it was inferted at the end, and that is the practice of B. R.-Per cur. Both forms are good here; but in C. B. this claufe is always inferted in the end. Judgment pro quer. Carth. 69.

A feire facias against an administrator, tefted 24th October, and returnable the 31st October, alias feire facias tefted 31 October, returnable 7th November; and it was objected, that these writs were irregular, because there were not fifteen days between the 24th of October and the 7th of November, but adjudged well, there being eight days exclufive 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 fcire facias's, or a feire feci; but in C. B. in cafe of the death of the plaintiff one nihil is sufficient. Att. Pract. C. B. 337

But in cafe of the death of the defendant there must be a fcire feci, or two nihils returned. Ibid.

If a feme, executrix to 7. S. marries, and then fuch hufband and wife bring debt against A. B. on an obligation in the right of the wife as executrix, and have judgment to recover the debt, damages and cofts, and then the wife dies before execution fued, the husband cannot have a fcire facias upon the judgment; for that he, though he was privy to the judgment, fhall not have the thing recovered; but it belongs to the fucceeding executor or adminiftrator. Cro. Car. 207, 227. Beaumont v. Lorg, adjudged, although it was objected, that the judgment was for the cofts and damagès which belonged to the husband, though the debt did not; and therefore the fire facias fhould be for the damages: but a feire facias being as well for the debt as damages, it was held not maintainable; and whether he might maintain a fci. fa. for the damages and cofts, they would give no opinion. Jones 248. S. C, adjudged, and faid this recovery does not turn it to the proper debt of the hnfband, as

Of the Scire facias by and against the Reprefentative 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 feme.

But if husband and wife obtain judgment, and the wife. dies, the hufband, without taking out administration to her, may have a feire facias; for by the judgment it is become a debt to him. Sid. 337. Cro. El. 844. 3 Mod. 188. 2 Leon. 14. 4 Leon. 186.

So if a woman obtains judgment in debt, and after mar. ries, and the husband and wife fue out a feire facias, and thereupon have an award of execution, though the wife dies, yet the hufband [without taking out adminiftration] may have execution upon the judgment, for the award upon the fci. fa. attached in the hufband and fhall furvive, though objected, the award on the fci. fa. made no alteration, as the execution must be on the firft judgment. Woodyer v. Grefham, Salk. 116. pl. 7. and Comb. 455. S. C. by which it appears, that the year expired before the fci. fa. taken out; and faid by Holt, ch. juft. That the debt was attached to him, jointly with his wife; fo that although the award of the execution did not alter the nature of the debt, yet it altered the property. Carth. 415. Skin. 682. 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 hufband and wife; and after two nihils returned, judgment is given, that the plaintiff hall have judgment against them, and then the wife dies, the hufband fhall be liable to this execution. Carth. 30. Salk. 116. pl. 7:

So note; In the above cafe of Obrian and Ram, reported alfo in I Mod. 170. If judgment be against a feme fole, and fhe marries; and then plaintiff fues out a fcire facias against husband and wife, and has judgment quod habeat executionem, against both, and afterwards the wife dies, plaintiff may fue out a fcire facias against the husband, and have judgment thereon against him.

And fo vice verfa in Woodyer v. Gresham, Salk. 116. If feme fole recovers judgment, and then takes husband, and they both fue out a feire facias, and have judgment quod habeant executionem, and then he dies, the husband alone may have a feire facias afterwards, and have execution.

A feire facias was brought against defendant as adminiftratrix of her husband, on a judgment against him for 1,500l. and after two nihils returned, a feire fieri inquiry

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was

Of the Scire facias by and against the Reprefentative of a Party to the Suit, dying after Judgment, and before Execution.

was taken out, and the defendant attended the execution of it, in order to lay the ftate of the affets before the jury; but the plaintiff infifting, that the award of execution on the former writs was in point of law an evidence of affets, a devaftavit was found to 1,117. &c. In Hil. 8 Geo. 2. The appeared to the feire fieri inquiry, pleaded plene adminiftravit, and traverfed the devaftavit; 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 fet afide, and to be admitted to plead; it being to no purpose to expect relief upon the trial of the traverfe ; and cited Salk. 93. 264. to fhew, that where there has been no fcire feci, and only two nihils, the court will relieve upon motion, and not put the party to an audita querela: and the ftate of the real affets was proved to be 130 7. which The offered to deliver up, and be examined upon interrogatories, if the plaintiff was diffatisfied with the account. The court was greatly inclined to relieve her; but upon confideration of her long acquiefcence, and the feveral steps taken fubfequent to the award of execution, they thought the came too late, and for that reafon only refused to interpose. Wharton v. Richardfon wid. Stra. 1075.

Note: Formerly the method was upon obtaining judgment by default against an executor or administrator (which would reach only the goods of the teftator or inteftate) and nulla bona returned to a fi. fa. fued out on fuch judgment, to iffue out a writ to inquire, whether the defendant had wafted any of the effects of the deceafed; and if a devaftavit was found by the inquifition and returned thereto, then for the plaintiff to proceed by fcire facias for the defendant to fhew caufe why the plaintiff fhould not have judgment de bonis propriis, to which feire facias the executor or adminiftrator could appear and plead plene adminiftravit [as in the cafe above].-But now the fieri facias inquiry, and the feire facias are incorporated and made out in one writ for expedition. However this method, though much better than the old one, is feldom pursued at this day, as it does not anfwer to the plaintiff if the debt is but a fmall one, because no costs are allowed against the executor or adminiftrator, 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

Of Attornies.

Of Proceedings by and against Attornies.

A

TTORNIES have privilege not to be fued in any other courts except those in which they are fworn and admitted, because of the prejudice that may accrue to the bufinefs 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 prefumed to be always amenable: alfo, as officers of the court, they are entitled to the process of attachment, and may fue by attachment of privilege.

fuit.

But this privilege an attorney fhall not have at the King's 2 Rol. Abr. 274. Bro. Superfedeas I. Bro. Superfedeas 1. 9 Hen. 6. 44. Nor unless there be the fame remedy in his own court; therefore he fhall not have his privilege when money is attached in his hands by foreign attachment in the theriff's courts in London. Saund. 67. Vide Comb. 427.

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 fues, or is fued in auter droit, as executor or adminiftrator. 12 Med. 316. Id. Raym. 533. Hob. 117.

Salk. 2. pl. 4.

Nor where an attorney of one court fues another of another court, the defendant fhall not plead his privilege; for the attendance of the plaintiff is as neceffary in his court, as the defendant'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 quare, as to this, for it feems, the defendant attorney must be fued by bill, although the plaintiff is an attor ney; and therefore he must be fued in his own court. Stra. 1141. Barnes 43; 44.

Nor when he joins, or is joined, in the fame action with others. Vent. 298. Dyer 277. Godb. 10.

One attorney fued another attorney of the fame court by attachment of privilege, and on motion the proceedings were stayed. Barnes 44.

An action on a penal ftatute, viz. 13 El. for entering a fraudulent judgment against an attorney of C. B. was commenced by original; on which he moved to ftay proceedings, infifting he ought to be fued by bill. On fhewing cause, it was urged, that this was a profecution for the crown.

And

Of Proceedings by and against Attornies.

And that defendant, if entitled to privilege, may plead it. Sed per cur. These qui tam actions are never confidered as the king's caufes. In profecutions at the fuit of the crown, defendants, though acquitted, can have no cofts; but in actions qui tam it is otherwife. The proceeding by original is irregular. Rule abfolute to ftay proceedings. Britton" qui tam v. Teafdale, 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 I Salk. 668. If an attorney, being plaintiff, Tay his action in Middlefex, the venue fhall not be changed;

otherwife if in London.

An attorney has no privilege against the court of confcience in London. Burr. 4 pt. 1583.

An attorney, being executor or adminiftrator, fhall not fue or be fued as a privileged perfon. 1 Ld. Raym. 533. An attorney may have his privilege in fuing a member of the university. Ld. Ray. 342.

*

If an attorney abfent himself for a year together, and does not give his attendance, he loses his privilege. Att. Pract. 51. Sed vide, ibid. And Lutw. 1667. where it is faid, that he fhall have his privilege, fo long as he continues an attorney on record, though he do not practice.

But by Burr. 4 pt. 2113, 2116. Privilege continues no longer than he remains an acting attorney.

Anciently rolls were kept of attornies in B. R. but fince the stamp acts 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 fued by bill. And one having caufe of action against him, however fmall, may fue him in the fuperior court, instead of fuing him in an inferior. Gardner v. Jeflop, one, &c. in C. B. 2 Wilf. 42.

An attorney must be fued by bill, though the plaintiff be alfo an attorney; and he cannot take out an attachment and hold the defendant to bail, as he does in the cafe of common . perfons; therefore this case is an exception out of the rule, that privilege takes away privilege. Stra. 1141.

Attornies.

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