survive or continue; and shall not become defective by the assignment, creation, or devolution of any estate or title pendente lite.

This rule has been held to apply only when the cause of action survives or continues in some person who is before the Court: Eldridge v. Burgess, 7 Ch. D. 411; Jackson v. N. E. Ry. Co., 5 Ch. D. 844; In re Shephard, Atkins v. S., 43 Ch. D. 131, C. A.

Accordingly, the marriage, death, or bankruptcy of a sole Plt or Deft will still cause an abatement, or render the action defective: Eldridge v. Burgess, sup.; but not the bankruptcy &c. of one or more out of several Plts or Defts jointly and severally interested: Lloyd v. Dimmack, 7 Ch. D. 398.

In cases within the rule the action may be continued between the surviving Plts and Defts without any such order as would in general have been necessary under the former practice of the Court of Chancery: Lloyd v. Dimmack, sup. ; and see Hinde v. Morton, 2 H. & M. 368; Fallowes v. Williamson, 11 Ves. 306; Boddy v. Kent, 1 Mer. 361; Mitf. Pl. [56—60]. The rule at Common Law, as regulated by the C. L. P. Act, 1852, ss. 135, 141, 142, and C. L. P. Act, 1854, s. 92, was similar, though the procedure was different.

Where the death or bankruptcy of a Plt or Deft terminates the cause of action, or the interest of the party, so as to leave no subject for litigation remaining, the action is necessarily at an end: see Twycross v. Grant, 4 C. P. D. 40, C. A.; Chapman v. Day, 49 L. T. 436; 31 W. R. 767; Wymer v. Dodds, 11 Ch. D. 438; unless by amendment a cause of action can be shown: Ashley v. Taylor, 10 Ch. D. 768.

As to the application of the maxim "actio personalis moritur cum personâ," see Phillips v. Homfray, 24 Ch. D. 456, C. A.; Re Batthyany, B. v. Walford, 36 Ch. D. 278, C. A.; Concha v. Murrietta, 40 Ch. D. 543, C. A.; Finlay v. Chirney, 20 Q. B. D. 494, C. A.; and that it does not apply to the equitable right to a mandatory injunction in respect of obstruction of light to freeholds of the deceased, see Jones v. Simes, 43 Ch. D. 607; and that the exors of the wrongdoer cannot be sued merely because his estate might have benefited by the wrong complained of: Re Duncan, Terry v. Sweeting, (1899) 1 Ch. 387; and that an action arising out of a statutory duty to the deceased (e.g., to compel a local authority to make a sewer to dispose of the liquids proceeding from the factory of the deceased) will survive to his exors, see Peebles v. Oswaldtwistle Urban District Council, (1896) 2 Q. B. 159, C. A.

Where Deft in action of tort dies before judgment, and at a date later than six months after the last of the acts complained of, further proceedings cannot be carried on against his legal pers. represves: Kirk v. Todd, 21 Ch. D. 484, C. A.

Where the cause of action survives or continues in a person not a party to the record, he may, if proceedings are to be carried on by him, bring himself, or if they are to be carried on against him, be brought before the Court in the manner provided by the subsequent rules of Ŏ. XVII: Twycross v. Grant, sup.; Jackson v. N. E. Ry. Co., 5 Ch. D. 844; Wright v. Swindon, &c. Ry. Co., 4 Ch. D. 164.

By r. 2, "in the case of the marriage, death, or bankruptcy, or devolution of estate by operation of law, of any party to a cause or matter, the Court or a Judge may, if it be deemed necessary for the complete settlement of all the questions involved, order that the husband, pers. represve, trustee, or other successor in interest, if any, of such party be made a party, or be served with notice thereof in such manner and form as is prescribed (see r. 4), and on such terms as the Court or Judge shall think just, and shall make such order for the disposal of the cause or matter as may be just."

Rule 2 does not apply where there is no transmission of interest; thus, husband Petr in divorce action having died after decree nisi, his represve could not revive: Stanhope v. S., 11 P. D. 103, C. A.; or where tenant for life, suing in ejectment, dies and is succeeded by his son as tenant in tail : Ferrall v. Curron, (1899) 2 I. R. 470.

any

By r. 3, "in case of an assignment, creation, or devolution of estate or title pendente lite, the cause or matter may be continued by or against the person to or upon whom such estate or title has come or devolved."

Where the Plt pendente lite has validly assigned his interest, and the assignee has obtained leave to carry on the proceedings in like manner as the Plt might, the statement of claim should be amended by adding a new title

:

to the action showing that the assignee is the real Plt, and an averment showing the devolution of the original Plt's interest: Seear v. Lawson, 16 Ch. D. 121, C. A.

Where a garnishee order absolute has been made in favour of a judgment creditor of the Plt, there is a devolution of estate by operation of law within r. 2, and the creditor is entitled to be added as co-Plt, but not to the conduct of the action: Wallis v. Smith, 51 L. J. Ch. 577; 46 L. T. 473.

Where sole Plt becomes bankrupt and his trustee declines to proceed, the action may be stayed by order in Chambers: Warder v. Saunders, 10 Q. B. D. 114; Jackson v. N. E. Ry. Co., 5 Ch. D. 844.

The Plt cannot, after his discharge, claim to have the stay removed on the ground that he has purchased the assets from the trustee: Selig v. Lion, (1891) 1 Q. B. 513; 39 W. R. 254.

That the intention and effect of an order of revivor against a trustee in bankruptcy is to substitute him for, and place him in the exact position of, the original Deft, see Chorlton v. Dickie, 13 Ch. D. 160; and see Johnston v. English, 55 L. T. 55; 55 L. J. Ch. 910; 35 W. R. 29; Cockshott v. London General Cab Co., W. N. (77) 214; 47 L. J. Ch. 120; 26 W. R. 31.

The trustee of an uncertified bankrupt who had sued for remuneration and damages upon an agreement prior to his bankruptcy, was added as co-Plt, with conduct of the action: Emden v. Carte, 17 Ch. D. 768.

Where an action is brought by the committee of a lunatic, and the lunatic is subsequently adjudicated bankrupt, the right of action vests in his trustee in bankruptcy, who cannot be added as a defendant against his will: Farnham v. Milward & Co., (1895) 2 Ch. 730.

As to the right of assignee of Plt's trustee in bankruptcy to continue the action, see Seear v. Lawson, 15 Ch. D. 426, C. A.; Howard v. Fanshawe, (1895) 2 Ch. 581; and as to the right of an undischarged bankrupt to sue, &c., if the trustee does not interfere, Jameson v. Brick and Stone Co., 4 Q. B. D. 208 ; Cohen v. Mitchell, 25 Q. B. D. 262, C. A.; Re Ball (1899), 2 I. R. 313, C. A. Trustee in bankruptcy, substituted for bankrupt Deft, by asking for a statement of claim adopts the whole action, including a pending appeal, and becomes liable for costs: Borneman v. Wilson, 28 Ch. D. 53, C. A.

I

Where sole Deft in an action on a bill of exchange became bankrupt, the action could not be continued against the trustee, as the debt could be proved in the bankruptcy: Barter v. Dubeux, 7 Q. B. D. 413, C. A.; and see Greenwood v. Humber & Co., W. N. (98) 162; secus, where the action was in respect of a debt incurred by fraud, and it was possible Plts might obtain some relief against the trustee Hale v. Boustead, 8 Q. B. D. 453, citing Emma Silver Mining Co. v. Grant, 17 Ch. D. 122.

Where trustee in bankruptcy, suing in his official name, is removed and a new trustee appointed, the new trustee must obtain an order to continue the action and give notice to the other parties under rr. 4, 5: Pooley's Trustee v. Whetham, 28 Ch. D. 38, C. A.

By r. 4, "where by reason of marriage, death, or bankruptcy, or any other event occurring after the commencement of a cause or matter, and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the cause or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties, and such new party or parties, may be obtained ex parte on application to the Court or a Judge, upon an allegation of such change or transmission of interest or liability, or of such person interested having come into existence."

The order to continue or carry on proceedings under these rules may be obtained in Chambers, or by petition of course at the Registrar's Chambers, or by motion of course: see Roffey v. Miller, 24 W. R. 109; Crane v. Loftus, 24 W. R. 93; Walker v. Blackmore, W. N. (76) 112; Middleton v. Pollock (No. 1), W. N. (76) 250; Twycross v. Grant, 4 C. P. D. 40; Jackson v. N. E. Ry. Co., 5 Ch. D. 844-9; Dan. 245 et seq.

On a motion or petition of course, proof of the allegations is not required, though the order may be discharged for erroneous statements in the petition: see Brignall v. Whitehead, 8 Jur. N. S. 183; 30 Beav. 229; 5 L. T. 301; 10 W. R. 69.

It is doubtful whether r. 4 is applicable after final judgment: Arnison v. Smith, 40 Ch. D. 567, C. A.; Guy v. Churchill, 40 Ch. D. 481.

Where two out of fifty-four Plts in an action for deceit died before judgment, an application after judgment by the exors of the two for an order under the rule was refused: Arnison v. Smith, sup.

Leave to revive under r. 4 for the purpose of appealing against a final decree twelve years old was refused, and (semble) such an order should not, in the absence of fraud, collusion, or irregularity, be made after the expiration of the time limited for appealing: Fussell v. Dowding, 27 Ch. D. 237.

Where a sole Plt who has given notice of appeal dies before it is heard, an order of course to carry on the appeal may be made: Ranson v. Putton, 17 Ch. D. 767, C. A.

The exor and devisee of a sole deceased Plt was allowed to carry on an action for a mandatory injunction in respect of obstruction of light to freehold premises of the deceased: Jones v. Simes, 43 Ch. D. 607.

On the death of a sole Plt, a person who has had leave to attend the proceedings may apply for leave to prosecute the action: Burstall v. Fearon, 24 Ch. D. 126.

Where exor, sole Deft in creditor's action, died pending application for a receiver, an interim receiver was appointed, Plt undertaking that admon de bonis non should be taken out with all speed: Re Parker, Cash v. P., 12 Ch. D. 293; but where, pending an application for a receiver by way of equitable execution, the judgment debtor died, an order for such receiver could not be made in the absence of any person to represent the debtor's estate: Re Shephard, Atkins v. S., 43 Ch. D. 131, C. A.

Where exor, after judgment in favour of his testator and notice of appeal, obtains an order for revivor, he becomes a substantive party, and is personally liable for costs: Boynton v. B., 4 App. Ca. 733.

And where the liquidator of a co. obtains leave to continue an action and does so, he adopts the action ab initio, and if unsuccessful must pay all the costs: In re London Drapery Stores, (1898) 2 Ch. 684.

On death of counter-claiming Deft, his exors were entitled to obtain an ex parte order against Plts who had obtained an order against them: Andrew v. Aitken, 21 Ch. D. 175.

In case of the decease of a lunatic Plt suing by and with his committee, the order for the exor, &c., to carry on proceedings discharges the committee from the action, and (unless otherwise directed) from all liability for costs: Harland v. Garbutt, W. N. (81) 8.

On the death of a sole petr before the hearing (see Re Dynevor Collieries Co., W. N. (78) 199) pending the other inquiries directed by the order made on the hearing, the petition may be ordered to be carried on by the represves of the Petr: Re Atkin's Estate, Ch. D. 82.

An assignment of his debt by a petitioning creditor does not give the assignee the right to obtain a winding-up order: Re Paris Skating Rink Co., 25 W. R. 701; 5 Ch. D. 595.

On default in pleading, and subsequent bankruptcy of a sole Plt, notice of motion by the Defts to dismiss for want of prosecution was ordered to be served on his trustees in bankruptcy: Wright v. Swindon, &c. Ry. Co., 4 Ch. D. 164.

Where proceedings have been taken after an action has become defective by birth of an infant, he should be made a party by the common order under r. 4, and the order should go on to direct an inquiry whether any proceedings affecting his interest have been taken in the action since his birth, and if so whether it will be for his benefit to be bound thereby (see form 3, sup. p. 114), and if so certified he is to be bound accordingly. If the inquiry is answered in the negative, the Plt or person having conduct can still proceed by supplemental action (as in Capps v. C., 4 Ch. 1). The advantages of making the infant a party in the first instance are that an appearance can be entered for him, and that if he refuses to appear the order can be worked out: Peter v. P., 26 Ch. D. 181.

Where Plts refused to apply to add infants born after judgment, Defts were entitled to an order, under r. 4, to add them: Wicks v. W., W. N. (87) 15.

Infant co-Plt having attained twenty-one, and become co-trustee with Deft,

was added as co-Deft on an ex parte application: Re Goold, G. v. G., 51 L. T.

416.

Revivor was dispensed with in a legatee's suit, commenced in 1758, where there was a fund in Court, and it was impossible to trace the represves of the original Defts: Ballard v. Milner, W. N. (95) 14, C.

By O. XVII, 5, the order when made is to be served upon the continuing and new parties to the action, or their solrs, and every person served not already a party to the action is bound to enter an appearance in the same time and manner as if served with a writ of summons.

By r. 6, any person not under disability, or under any disability other than coverture, but having a guardian ad litem, may apply to the Court or Judge to discharge or vary such order within twelve days from the service of it; and by r. 7, any person under such disability, not having a guardian ad litem, may apply within twelve days from the appointment of a guardian or guardians ad litem for him; and until such period has expired, the order is to have no force or effect againit him.

By O. XVII, rr. 1-4, the former technical distinctions between supplemental bills, bills of revivor and supplement, and original bills in the nature of bills of revivor and of supplemental bills, are finally abolished.

By O. XVII, 8 (adapted from Cons. Ord. 32, r. 4), when the Plt or Deft in a cause or matter dies, and the cause of action survives, but the person entitled to proceed fails to proceed, the Deft (or the person against whom the cause or matter may be continued) may apply in Chambers (see O. xxx, sup. p. 25) to compel the Plt (or the person entitled to proceed) to proceed within such time as may be ordered: and in default of such proceeding, judgment may be entered for the Deft, or, as the case may be, for the person against whom the cause or matter might have been continued; and in such case, if the Plt has died, execution may issue as in the case provided for by O. XLII, 23.

When the action has been transferred to the County Court, the application to compel Plts to proceed should be made in that Court: Duke v. Davis, (1893) 2 Q. B. 260, C. A.

And see Dan. 239 et seq.

SECTION II.-DISPENSING WITH AND APPOINTING REPRE

SENTATIVES.

1. Order to carry on Proceedings without a Represve-0. XVI, 46.

UPON motion &c. by counsel for all parties, and upon reading the order dated &c., and an affidavit of &c., whereby it appears that J. and H., two of the grandchildren of G., the testator in the writ named, are dead, and that there is no legal pers. represve to either of them, This Court doth order, that the proceedings in this action, and the inquiries and several other matters directed by the order, dated &c., be carried on and prosecuted, notwithstanding the absence of any person representing the respective estates of the said J. and H.-Gladwin v. G., M. R., 8 Feb. 1853, A. 422.

For admon order dispensing with the represves of deceased exors and trustees, where persons not sui juris were interested, see Whittington v. Gooding, 10 Ha. xxix.

For order for exors of deceased Deft to carry on proceedings for the purpose of enforcing payment of the costs of a discontinuance under O. xxvi, 1, see Re Overton, Hansby v. Llewellyn, 13 July, 1892, B. 543.

For forms of application, see D. C. F. 75, 76.

2. Order appointing Plt to represent deceased Plts-0. xvi, 46. UPON motion &c. by counsel for the Plts, and upon reading an affidavit of &c., This Court doth order, that the Plt W. be appointed to represent the estates of the Plts G., E. &c., respectively deceased, for the purposes of this action.-Vince v. Walsh, V.-C. W., 11 June, 1853, B. 893; Walker v. Daniell, V.-C. B., 5 Nov. 1874.

3. Order at the Hearing appointing a Deft to represent deceased Defts. THIS action coming on &c., This Court doth order that the (trial of this action) do stand over; and the Deft E. by his counsel consenting hereto, It is ordered that the Deft E. be appointed to represent the estate of the Deft H., deceased, and also the estate of the Deft D., deceased, for all the purposes of this action.-See Joint Stock Discount Co. v. Brown, V.-C. J., 24 May, 1870, A. 1499; 8 Eq. 376.

4. Appointment of Persons to represent various Classes in order to decide Questions of Construction-0. XVI, 32 (a) (b).

UPON motion &c. Let the following &c.: 1. An inquiry whether any of the persons who were the next of kin, according to the Statute for the distribution of intestates' estates, of the testator P. at the time of his death, died before the day of (period for distribution of the estate), and if so, whether any of such next of kin left any child or children them respectively surviving, who died before the said day of, and any such child or children who survived that date; And in case it shall appear that any of the said next of kin so dying left any such child or children who died before the said - day of —, then Let a proper person be appointed in Chambers to represent such child or children so dying (for the purpose of obtaining the judgment of the Court upon the construction of the will of the said testator); And in case it shall appear that any of the said next of kin so dying left any such child or children who survived that date, then Let one of the said last-mentioned children, if any are still living, and if they are all dead, then Let a proper person be appointed in Chambers to represent such last-mentioned children for the purpose aforesaid. 2. An inquiry whether H. R. P. in the testator's will named is living or dead, and if dead, whether or not he survived the testator; And in case he survived the testator, who is his legal pers. represve; And if it shall appear that he survived the testator and has no legal pers. represve, then Let a proper person be appointed in Chambers to represent his estate for the purposes of this action; And Let proper persons be appointed in Chambers to represent for the purpose of obtaining the judgment of the Court on the construction of the testator's will the following persons and classes respectively, that is to say, 1. The persons who were at the death of the testator his next of kin according to the Statute for the distribution of intestates' estates; 2. The heir-at-law of the testator at the time of his death; 3. The children, if any, of the said heir-at-law, who died before the said day of; 4. The children, if any, of the said heir-at-law,