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VOL. LIII.

TORONTO, JANUARY, 1917.

No. 1

RENEWAL OF WRITS IN NAMES OF DECEASED

SUITORS.

It appears to us that the profession will be well-advised if they act upon the presumption that the correctness of the decision of the Second Appellate Division of the Supreme Court of Ontario in the recent case of Mahaffy. v. Bastedo is open to grave doubt. The question was whether an execution could be renewed after the death of a sole plaintiff without first obtaining an order to continue the proceedings as provided by Rule 300, or obtaining leave under Rule 566, and whether a sale under a writ renewed without such preliminary proceedings is valid. The Court decided these questions in the affirmative, Meredith, C.J.C.P., dissenting. We venture to question the view expressed by Mr. Justice Riddell as reported in the Weekly Notes (11 O.W.N. 150). If the writ were in the sheriff's hands in full force at the time of the plaintiff's death it undoubtedly might be executed notwithstanding his death and that is all the authorities cited by the learned Judge can possibly establish; but writs of execution have, as is well known, a limited duration, and if not kept renewed they expire. Now the renewal of a writ is a proceeding which must be taken by a suitor in esse who is before the Court, there is no authority cited by the learned Judge which establishes that proceedings can be taken in the name of a deceased person, or that a stranger to an action may intervene therein and take proceedings unless in some way authorized to to so by the Court, in which case he ceases to be a stranger. A man walking along Queen St. has no right to step into Osgoode Hall and take proceedings in any action he pleases, unless he is acting either in person as a litigant in the action, or is the duly authorized agent of some one who is a party. That is a proposition which, but for the decision in question, we should have thought to be so plain and indisputable as not to be even arguable.

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If that be so, then it might be asked how can a writ be renewed by a dead man or by a stranger to the action? This is a proposition to which the majority of the Court do not appear to have seen fit to address themselves, as far as the note shows, and yet it is obviously at the very root of the question in issue. Two courses appear to have been open to the representatives of the deceased platiff (1) To apply, by analogy to the practice prescribed by Rule 566, for leave to renew the writ. (2) To obtain an order under Rule 300, continue the proceedings and then renew it in the name of the parties added by the order. The plaintiff's representatives adopted neither course, and yet it was held that the procedure was valid. It might be asked on whom would rest the responsibility for a writ renewed in such circumstances? Not on the deceased plaintiff obviously, nor his representatives, because even though they may have authorized the solicitors of the deceased plaintiff to proceed, it could be hardly intended that they authorized them to proceed otherwise than according to the course of the Court, and it may be that the solicitors by whom proceedings are taken in the name of a deceased person would incur a personal responsibility to a defendant whose property should be sold in such circumstances: see Young v. Toynbee, 1909, 1 K.B. 215. Therefore we say again it is perhaps advisable for the profession not to act upon the case in question, but rather follow the procedure pointed out in the Rules we have referred to, about which there can be no question. In the olden days so insistent was the Court that the suitor should appear in person, or by attorney, before it would proceed to exercise jurisdiction, that we find a defendant in one case actually brought into Court in his cradle, but we have travelled a long way from that, and now according to this lastest decision a person may take proceedings in an action to which he is not a party. The case we may observe appears to be opposed to the decisions in Re Shephard, Atkins v. Shephard, 43 ch. D. 131; and Norburn v. Norburn, 1894, 1 Q.B. 448 and Chambers v. Kitchen, 16 P.R. 219; 17 P.R. 3.

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It is said by Riddell, J., that a writ is a judicial act, but though it is true that the writ itself is a judicial act, the issue of the writ

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