M. T. 1847. BORBIDGE v. FREEMAN. Nov. 23. Brewster and James Plunket, contra. The writ was tested as of the preceding Term, when the plaintiff was alive; the record then will be perfectly regular, and the Court will not go behind the record. It is according to the well settled practice of the Court. The reason a scire facias in such case is not issued is, that a scire facias must issue in Term time; and a great deal of time would elapse if the plaintiff could not issue his execution in the meantime: Cleave v. Vere (a). Clerk v. Withers (b) is a leading authority on the subject. The defendant has nothing to complain of; for after his person or his goods are taken it is a satisfaction of the debt, and it is admitted here that the debt is due: Ellis v. Griffiths (c). I admit that I have no precise case in which the writ was issued before, and executed after, the decease of the plaintiff. Thorogood's case (d); Administrator of Dale v. Vincent (e); Parkes v. Mosse (f); Ryan v. Ball (g). The Court will act on the practice where no possible mischief can be suggested. It is well enough if the writ is tested before the plaintiff's death. A writ is never post-tested. J. T. Ball, in reply. There has been no case decided precisely identical with the present; but upon the practice and the principle upon which the cases have been decided, I shall show that the defendant ought to be discharged. It is admitted that the judgment of the Court in Ellis v. Griffiths was founded on the reasoning of the Judges in Cleave v. Vere. The judgment in Cleave v. Vere (h) is founded on the proposition, not to be found in the present case, that the Sheriff had the writ actually in his hands. But it is not contended in that case that a writ may be issued or taken out in the name of a dead man. Thorogood's case is not in point. In that and the preceding case the reasoning of the decisions is placed on the nature of the Sheriff's office; but neither of them is any authority for issuing a writ after a man is dead. In Ellis v. Griffiths the writ had been for two years in the Sheriff's hands, and the defendant was arrested two days after the plaintiff's death. If the Court allow the practice to prevail, justice will not be done to defendants. The statute of Anne, c. 7, s. 1, directs a docket to be lodged with the Sheriff, stating the amount due to the plaintiff, and signed by the plaintiff or his agent or attorney. The 2nd section gives a right of action for treble damages, in case the execution is over-marked. Now, on the day the attorney went into the office and took out the writ, was there any party against whom we could proceed for the over-marking of the writ? The statute of Anne gives an action only against the plaintiff, not against his attorney; and the attorney's office ceases with the death of his client. If the Court decide this case against the defendant, it will be deciding that an attorney, from malice or any other motive, may enter the office and issue a writ in the name of a dead man. It is a mistake to say that in this country an arrest is a discharge of the debt. Plunket. The officer of the Court has stated that the practice has been invariably to act as has been done in this case.-[Pennefather, B. That would only go to the costs of the motion]. PIGOT, C. B. It is necessary for us to enquire what the practice in these cases is, and then we shall make an order on the subject. M. T. 1847. BORBIDGE v. FREEMAN. Subsequently Brewster referred the Court to Doe d. Beyer v. Roe (a); Walker v. Drawater (b); Bragner v. Langmead (c); Watson v. Maskell (d); Stat. 9, W. 3, c. 10. PIGOT, C. B. For my part, if this proceeding could be sustained without (a) 4 Bur. 1971. (c) 7 T. R. 20. (b) 7 T. R. 20, note. (d) 4 M. & Sc. 461. Nov. 24. BORBIDGE v. FREEMAN. M. T. 1847. violating any rule of law, and if it was not calculated to take away Exch. of Pleas. a benefit given by an Act to a defendant, I should be for upholding a course of proceeding which has been so long established, rather than enquire whether the rule of practice as originally framed was a convenient one or not. We must consider the subject in two ways-what the Act requires to be done, and the benefit it confers. The Act, 6 Anne, c. 7, requires in the 1st section that, "at the "time any writ of execution shall be demanded or called for in any "office in this kingdom whence such execution is to issue, the party "demanding the same shall lodge with the officer a writing or cer"tificate under the hand of the party or parties for whom such "execution is demanded, or of his attorney, containing such sum 66 as the party at whose suit such execution shall issue demands, "and insists on to be in good conscience due to him." If the execution be issued after the death of the party, compliance with that requirement is impossible; first, the party cannot sign the certificate since he is dead; secondly, it cannot be signed by the person who is the plaintiff's attorney, for it cannot for a moment be contended that though he was the person's attorney he is now the attorney of a person who is dead. The Act requires an affidavit of the amount due to the plaintiff in "equity and good conscience;" how is he to know what is the amount that is due ? That 1st section, if there was no more in the Act, is sufficient in my mind to show that the party ought to be living at the time that the execution is sued out in his name; but the 2nd section makes it still stronger for it provides that if the party at whose suit the execution issues, or his attorney or agent, shall omit to deliver an attested copy of such certificate, or fraudulently over-charge the party at whose suit the execution issues, he shall forfeit to the party grieved treble damages. This Act does two things; it requires a certificate of the amount due in good conscience to be given, signed by the party or his attorney, and it gives a remedy not given at Common Law, by it. If the party, or his attorney, shall omit to give such certificate, or shall over-charge the party, it gives an action for treble damages against the party at whose suit such execution issues. It is enough for me to say, that that Act of Parliament confers that M. T. 1847. BORBIDGE V. right of action; and if that right was taken away by the course which has been adopted, it would be enough to induce me, for one, to hold that such practice cannot be allowed to prevail: in no case, that I am aware of, is an action for a personal wrong capable FREEMAN. of being brought against the executor of the party; but even if that be not so, the Act of Parliament does not provide for that particular case, it provides for the case of a proceeding by the party who is acting for a person who is living at the time. But if the executor issues a scire facias it is different. What we are now deciding is this, that no party shall issue the writ who will not make himself liable to the penalty imposed by the statute if he violates its provisions. There is in this case not only a violation of a rule of law, but there is also that which this Act of Parliament seems intended to prevent; but for this I should be slow to set aside these proceedings. PENNEFATHER, B. I agree with the observations which my Lord CHIEF BARON has made upon the statute of Anne with so much clearness. The statute makes it imperative on us to discharge the defendant; but independently of the statute, I own I should entertain very considerable doubt that there is any practice in this Court which should sanction the issuing of such an execution. I quite agree, that if there is a uniform practice, that it ought, if possible, to be upheld; but it appears that there is no settled practice. The present case appears to be in pursuance of the practice which prevails in this Court, but contrary to that in the Queen's Bench. In the Common Pleas it is said to be sometimes one way and sometimes another. Now to be a matter of practice, I conceive that it ought to be uniform. I will not say more than, that after the death of the person, an attorney should take proceedings in the name of a person who has no longer existence, is a practice which ought not to be upheld; the authority of his client terminated with his existence. And in attending to the decisions of the Courts in England, to which we have been referred, it will appear that the Judges sedulously guarded themselves against approving of the practice. The cases were cases of executions BORBIDGE M. T. 1847. issued in the lifetime of the plaintiff, in which the authority was Exch.of Pleas. legally conferred on the attorney, and the writ legally put into the hands of the Sheriff, and the Sheriff was bound to execute the writ legally entrusted to him; but they guarded themselves against sanctioning a case where the proceeding is taken without the authority of the person in whose name the execution is issued. V. FREEMAN. As to the expression of the Master, referred to in Doe d. Beyer v. Roe, it was extra-judicial; he was not called on to give his opinion on the subject. I think it right to express my opinion on this case independently of the statute of Anne; but I quite concur in the reasons expressed by my Lord CHIEF BARON, in consequence of the provisions of that statute. RICHARDS, B., concurred in the judgment of the Court. LEFROY, B. I entirely concur in the judgment which has been given by my Lord CHIEF BARON and the other Members of the Court. We are not overstepping any practice, and we are not called on to consider what ought to be the practice, and we have nothing to guide us. Now it is admitted, that on Common Law principles a party ought not to issue execution after the death of the plaintiff, for the general rule of law is, that the suit abates by the death of the party, and it required a statute to obviate that consequence. Another principle is, that by the death of the party a power of attorney is revoked. Now we have these two things to guide us when are going to settle the practice that a writ ought not to issue when the party is dead at whose suit it is issued; and the Court does seem in that case in Burrow, which has been referred to, emphatically to support that view of the case, that the act ought to be done in the lifetime of the party. It seems so clear, that it is a waste of time to dwell on it; but upon the statute it does appear to me that if it is not a matter of legal interpretation it is a legal implication that it did not contemplate that execution should issue after the death of the party. And we must suppose that if they contemplated such a thing, they would have provided for it; and therefore we must take it that it is an impli |