Ex'rs of Henderson vs. Alexander, adm'r.

of the scire facias, then we apply to it the rule of strict construction. We do not advance the remedy so as to repress the mischief, but we repress the remedy and advance the mischief. That is to say, the mischief of "unnecessary suits and delays," to an extent not contemplated by the Legislature, continues.

The words plaintiff and defendant, in our judgment, as used in the latter clause of this section of the Act of 1799, are not descriptive of the natural persons who sue and are sued, as claimed by the counsel for the defendant, but are used in the sense of parties, or those who, in legal contemplation represent the parties. They are, therefore, descriptive of the executor or administrator of the parties, as well as of the parties themselves, if in life. Under this view of their meaning, in case of the death of the plaintiff and the defendant, to make the plaintiff's representative a party, notice may be given to the executor or administrator of the defendant; and, in case of the death of plaintiff and defendant, in order to make the representative of the defendant a party, the executor or administrator of the plaintiff may issue the scire facias. And this was the course pursued in this cause.

But, admitting that the construction of these terms, given to them by the defendant's counsel, argumenti gratia, is the true meaning, then we say that the intention of the Legislature, in the Act of 1799, is so accurately ascertained and so conspicuously manifest, that it ought, in this case, to prevail over the literal sense of the terms. We would, if that were the true meaning of the letter of the act, give to it an equitable construction, and so enlarge the letter as more effectually to meet the end in view, and prevent the failure of the remedy. This is clearly one of those cases where the courts may safely apply this rule of statutory construction.

An argument was derived from the definition of a suit, (to wit, Parties, a cause of action and a Court,) in behalf of the defendant in error, by one of his ingenious counsel. He argued that, inasmuch as the plaintiff and defendant were both dead before the issuing and service of the scire facias, there were no parties before the Court, and therefore no suit. This argument, if it were sound, proves too much; for it proves that if one only of the parties be dead then there is no suit, and in that event the representatives could not be made parties. For the requirement of the argument is, that there shall be not a party, but parties. This mode of argument would nullify altogether the Act 1799. But we may concede that, at the time the scire facias issued in this case there were no parties

Ex'rs of Henderson vs. Alexander, adm'r.

before the court-the action could not proceed; and that, in the then position of things, the rights of the deceased litigants could not be adjudicated. All this we do concede, for it is all true; yet all this does not affect this question; for in this very position of things the law lays its strong hand upon the rights of the parties and holds them; and also holds the litigation in abeyance, until, according to its own mandate, those who represent the deceased plaintiff and defendant shall be brought in, to conduct the litigation to a conclusion. It is a mistake to suppose that the case, when parties are made, proceeds as between the first parties; the cause of action, it is true, is still the same, but it is litigated by the new plaintiff as a trustee; and, if judgment is had against the new defendant, it is had against him, unless in some way he omits or violates his duty, in his representative character. In several respects it is a new case. The record of all previous action is retained, and such rights as have already accrued to either party are secured; the lien of a judgment in case of appeal, and the security on the appeal, for example. "By what right, inquires the counsel for the defendant in error, does Sutliffe, the executor of the plaintiff, go into the office of the clerk of the Superior Court and demand a scire facias to make himself a party? there is no suit pending, and he cannot be heard any more than any other man." We answer, by the same right that any citizen institutes a suit against his neighbour, and files his writ in the clerk's office and demands a process. It is a matter of mere right to demand and have the writ of scire facias. The record, as it stands before the clerk, shows the death of the parties, for their death was suggested; in that event the law, with a potency which none can resist, commands the writ to issue, and the clerk must obey or not, at his peril. He has no more power to judge of the propriety of issuing the writ, when the death of one or both parties appears from the record, than he has of the propriety of issuing a process at the instance of any citizen, upon an action of assumpsit for a money demand, properly filed in his office. The issuing and service of the writ does not make the parties, any more than a process in debt establishes the plaintiff's demand. The making of parties is not the act of the executor, nor is it the capricious or arbitrary act of the Court, but it is the solemn judgment of the Court upon an issue made at the return of the scire facias. This writ is in the nature of an action; Reed vs. Sullivan, 1 Kelly's R. 292, 3; an action to which the defendant may plead, and to which, in this case, he did plead; an action in

Ex'rs of Henderson vs. Alexander, adm'r.

which it is incumbent upon the plaintiff to show his right to make himself, or the defendant, a party; and when he does show this, the Court has no discretion, but must give its judgment accordingly. Who is injured by this proceeding? who is surprised? or who that is interested is deprived of his day in court? No one. We think that, according to a just and reasonable construction of our own statute, this action did not abate, and that the representatives of the deceased plaintiff and defendant ought to have been made parties.

If the action did abate under the Act of 1799, we should unhesitatingly say, that the Act of William III. applies to it, and that under that act parties ought to have been made. By the Act of 25th February, 1784, usually called the Adopting Act, the Legislature declared "that all and singular the several acts, clauses and parts of acts that were in force and binding on the inhabitants of the said province, on the fourteenth day of May, A. D. one thousand seven hundred and seventy-six, so far as they are not contrary to the Constitution, laws and form of government now established in this State, shall be, and are hereby declared to be, in full force, virtue and effect, and binding on the inhabitants of this State, immediately from and after the passing of this act, &c. until the same shall be repealed, amended or otherwise altered by the Legislature." Hotchkiss, 93. By this act it is perceived that the statute laws of Great Britain, of force in the province of Georgia on the 14th of M, 1776, not contrary to the Constitution, laws and form of government of this State, were declared to be the law of the State until repealed, amended, or otherwise altered by the Legislature. Among the statutes of Great Britain of force in the province of Georgia on the 14th May, 1776, is the Act of 8 and 9 William II1, ch. 11 sec. 6; which statute was not contrary to the Constitution, laws and government of the State. So much of that statute as concerns this question is in the following words, to wit: "In all actions to be commenced in any Court of Record, if the plaintiff or defendant happen to die after interlocutory and before final judgment, the action shall not abate by reason thereof, if such action might have been originally prosecuted or maintained by or against the executors or administrators of the party dying, but the plaintiff, or if he be dead after such interlocutory judgment, his executors or administrators, shall and may have a scire facias against the defendant, if living, after such interlocutory judgment, or if he died after, then against his executors or adminis

Ex'rs of Henderson vs. Alexander, adm'r.

trators, to show cause why damages in such action should not be assessed and recovered by him or them. And if such defendant, his executors or administrators, shall appear at the return of such writ, and not show or allege any matter sufficient to arrest the final judgment, or being returned warned, or upon two writs of scire facias it be returned that the defendant, his executors or administrators had nothing whereby to be summoned, or could not be found in the county, shall make default; that thereupon a writ of inquiry of damages shall be awarded, which being executed and returned, judgment final shall be given for the said plaintiff his executors or administrators, prosecuting such writ or writs of scire facias against such defendant, his executors or administrators respectively." This statute makes in express terms provision for just the case now before this Court-for it enacts that the plaintiff if living, and if dead his executors or administrators shall have a scire facias against the defendant if living, and if dead, against his executors or administrators, to show cause, &c.

But say the defendant's counsel, this act is repealed by the Act of 1799. It is not expressly repealed, for there are no words to that effect in the Act of 1799. The last declared will of the Legislature touching this subject matter, we admit must prevail. The Act of 1799, so far as it is identical with the Statute of William, takes the place of that statute, and so far as it conflicts with, repeals it. So far as it goes, it supplants that statute; and so far as it falls short of it, it leaves that statute in full force, unless all the provisions of that statute are repealed expressly or by implication. Now the argument of the counsel is, that the Act of 1799 does fall short of the Statute of William in this, that it makes no provision for scire facias to issue where both parties have died, and that statute does make such provision. This being admitted on both sides for the argument's sake, the only question remaining is this, to wit: is that provision of the Statute of William which authorises scire facias to issue when both parties have died, repealed by what is enacted in the Act of 1799? We think not; as before stated there is no express repeal, nor is it repealed by implication, because there is no conflict between the provision of the English Statute referred to and the provisions of the Georgia Statute. Both may well stand-the enforcement of the former does not in any way interfere with the enforcement of the latter. The remedy which our act affords does not go the length of the remedy given by the Act of William, and that is all that can be

Bond vs. The Central Bank of Georgia.

said of it. Our act occupies the place of the English Statute so far as it is identical with it, and no farther-and so far as it is not identical with it, leaves it in the position it occupied at the time we adopted it.

Under every view which we can take of this record, we must think there is error in it, and are compelled to reverse the judg ment of the Court below.

No. 13.-JOSEPH BOND, plaintiff in error vs. THE CENTRAL BANK OF GEORGIA, defendant in error.

[1.] There must be a time averred in the writ, when every material or traversable fact transpires.

[2.] In a suit by the bearer against the maker of a note, the omission in the declaraation to allege the time when the note was transferred, is cured by verdict or confession of judgment.

[3.] No promise need be alleged in a declaration when the facts set forth show a legal liability without it.

[4.] The 25th section of the original charter of the Central Bank of Georgia, limited loans to any one person to $2,500. In a suit by the Bank upon a renewal note under the amended charter of 1829, or on a bill of exchange discounted or purchased under the act of 1838, for the purpose of remitting funds to pay interest on the State's bonds or foreign debt, it is not necessary to set out these latter acts as exceptions to the limitations contained in the original statute, and to aver that the debt sued on was contracted under the powers which they confer. These acts were passed to extend the original charter, by clothing the Bank with additional authority, and the courts are bound to observe their provisions.

[5.] The bona fide holder of a negotiable note, payable to bearer, for a valuable consideration, without any notice of the facts which impugn its validity, as between the previous parties, if it is transferred before it becomes due, takes it unaffected by these facts.

[6.] The holder of a negotiable instrument is presumed to be a bona fide holder for a valuable consideration, without notice.

[7.] The extinguishment of a pre-existing debt constitutes a valuable consideration for the transfer of a negotiable note. And the holder thus receiving it, before due, and without notice, is unaffected by the equities between the antecedent parties. [8.] The newspaper itself is the best evidence of the contents of any article which has been published in its columns.

[9.] The regulations in the 11th and 21st sections, and the limitation as to amount in the 25th section of the original charter of the Central Bank of Georgia, are directory merely, to the officers of the institution. And a debt may be collected, although contracted in disregard of any or all of these provisions; that is, being without