court allowed the record and writ to be amended, upon the application of the banking company, who were the real plaintiffs, by the insertion of the name of the new public officer, nunc pro tunc, and refused to set aside the judgment on the ground of the irregularity. It never was intended that a matter of mere form like this should be traversed. It is very different from the matters suggested in Bartlett v. Pentland and the cases which followed it, and Watson v. Quilter: those were matters of substance. [MAULE, J.-You cannot introduce new parties upon the record without a suggestion.] That may be; but there is no case to show that the fact need be suggested upon the nisi prius record. Suppose a suggestion were entered, that the plaintiff had been created a baronet after the commencement of the action, would that have been traversable?

Gurney and Ogle, in support of the rule.-The jury were summoned to try a cause of Taylor v. Sutherland, and the cause tried was Barnewall v. Sutherland. This was a clear irregularity, and one by which the defendants might be prejudiced in respect of costs. There are numerous cases to show, that, wherever it becomes necessary to show upon the record an excuse for deviating from the customary course of proceedings, it must be done by some act of the court, or by a suggestion, which the other side must have an opportunity of traversing or demurring to. In Pennoir v. Brace, 1 Salk: 312, 319, 1 Lord Raym. 244, *judgment was obtained in trespass against four, who *388] brought error, and afterwards one of them died: it was held that the plaintiff could not sue out execution without suggesting the death upon the record. [WILLIAMS, J.-There the writ did not agree with the judgment. In Rex v. Cohen, 1 Stark. N. P. C. 511 (E. C. L. R. vol. 2), it was held, that, if a co-plaintiff die, the suit will be abated, unless the death be suggested according to the statute 8 & 9 W. 3, c. 11, s. 6: and therefore, if a co-plaintiff die after issue joined, a trial without such suggestion on the record would be extrajudicial, and consequently no perjury could be assigned upon any false evidence given thereon. [MAULE, J., referred to the form of suggestion given in Chitty's Statutes, p. 2, n. (e).] In such a case as this, the jury could not be attainted, or fined for non-attendance. [WILDE, C. J.-The venire should certainly follow the record.] In Plomer v. Ross, 5 Taunt. 381-391 (E. C. L. R. vol. 1), HEATH, J., says that a suggestion may be pleaded to, and that common justice requires it. [WILLIAMS, J.-That was a suggestion of breaches.] All the authorities are fully considered in Watson v. Quilter, where the question is very elaborately discussed by Lord ABINGER; and the result is, that a suggestion of this kind must be so entered as to give the opposite party an opportunity of traversing or demurring to it. [WILLIAMS, J.What do you say that the company should have done here?] They should have served the defendants with a suggestion, and demanded a

plea. [WILLIAMS, J.-Suppose the death of Taylor had taken place on the day before the trial,-what would have been their course then?] That might occasion inconvenience: but it is enough to say it is not this case. Here was a fourth defendant, Duff, who was not represented at the trial, he having *suffered judgment by default before Taylor's death: suppose execution were to issue against him upon this assessment of damages at the suit of Barnewall,-would he not be justified in resisting and even shooting the officer? [CRESSWELL, J.-I think he would be very rash. He would probably have the wisdom to take advice.] Cur. adv. vult.

WILDE, C. J., now delivered the judgment of the court.

[*389

In this case a rule has been obtained, on the part of the defendant, to show cause why the verdict which has been found for the plaintiff, should not be set aside, and a new trial had.

The facts were, that the plaintiff, who sued as public officer of a banking company, under the statute 7 G. 4, c. 46, died after issue joined, and that the nisi prius record was made up from the plea-roll, as though the party were alive; that the venire had been awarded accordingly as between Taylor as plaintiff and the defendants; and that no entry was made upon the plea-roll, of the death, or of the appointment of the new public officer.

It appears, further, that, after the nisi prius record was passed so made up, a memorandum was entered upon it, stating the fact of the death, and that Barnewall had been appointed public officer, but which was not stated by way of suggestion to the court, nor followed by any statement of a confession by the defendant, or a nient dedire;' and that, after such entry had been made, the cause was entered for trial as a cause of Barnewall v. Sutherland; and that cause was tried by the jury returned upon the venire in a cause at the suit of Taylor. Upon the part of the plaintiff, notice had been given *of the [*390 death of Taylor, and that such an entry would be made, and that the cause would be tried. Some of the defendants appeared to protest against the trial, and others did not appear.

A verdict was found for the plaintiff, and the present rule was afterwards obtained to set aside that verdict on the ground that the entry made upon the record, of the death of Taylor, and that Barnewall had been appointed public officer, was irregular; as was also the proceeding to trial in a cause in which Barnewall was the plaintiff, by a jury returned under a venire in a cause in which Taylor was the plaintiff. Upon showing cause against this rule, the plaintiff insisted that his proceedings had been regular, being authorized by the statute of 7 G. 4, c. 46. By the 9th section of that statute, the companies mentioned therein, are authorized to sue in the name of a public officer; and it is enacted that the death, resignation, or removal, or any act of such public officer, shall not abate or prejudice any such action, but the

same may be continued and carried on in the name of any other public officer of the copartnership for the time being." And in section 12, it is enacted that any judgment recovered against any public officer of the copartnership shall have the like effect and operation against the property of the partnership, and the property of every member thereof, as if such judgment had been recovered or obtained against the copartnership."

The plaintiff contends, that, under these words, no suggestion, or entry upon the plea-roll, was necessary; and that a mere memorandum upon the nisi prius record, stating the fact of the death of Taylor, and that Barnewall had been appointed public officer, was all that was required; and also that the cause was properly tried in the name of such new public officer as plaintiff, and that no new venire was requisite. *Upon the part of the defendant, it was contended that the *391] enactment that the action shall not abate by the death of the public officer, the plaintiff,-as would have been the case by the course of the common law, and that the action may be carried on in the name of the new public officer, does not dispense with the necessity of the fact of the death, and the appointment of the new public officer, being suggested upon the record, nor the issuing of a venire in the name of the new or substituted plaintiff. And the defendants insist, -except where there is an express statutable provision dispensing with it,—that, in all cases where there is a change of parties during the progress of the cause, before trial, that change is required to appear upon the record, by way of suggestion to the court; and, where such facts are not traversable, they should be followed by a confession, or nient dedire.

In this case, the defendants had traversed by plea the appointment of Taylor as a public officer of the company; and a verdict for the defendants upon the issue on that plea would have been a full defence: and for a good reason; for, the company would not be bound by the judgment in the cause, unless the plaintiff Taylor was a public officer of the company; nor would the property of the members of the company have been bound by any such judgment. And the fact whether Barnewall was a public officer of the company when he was substituted as plaintiff, is equally important to the defendant as was the character of Taylor when he stood upon the record as plaintiff. And, if the court, upon application, would have allowed a suggestion that Barnewall was a public officer, to have been entered, with a confession or nient dedire, some satisfactory evidence must have been offered to the court of the fact. But, in this case, the memorandum was entered upon the record, stating the fact, without any authority *from the court; and in *392] a very informal manner, without any opportunity to the defendants to traverse the facts stated, and without the statement of any

matter excluding the right to do so, such as follows a suggestion which the opposite party is not allowed to traverse.

Without entering into the question, whether, if the suggestion were properly entered upon the plea-roll, the facts alleged would be traversable or not, it is clear that the entry which was made on the nisi prius record in this case was irregular, and did not authorize the trial of the cause in the name of Barnewall as the substituted plaintiff; and therefore the rule for setting aside the verdict which has been obtained for the plaintiff, and for a new trial, must be made absolute.

Rule absolute.

BARNES, Administrator of JANE BARNES, deceased, v. WARD. Feb. 25.

A. being possessed of land abutting on a public footway, in the course of building a house on such land, excavated an area, which, by the negligence of his workpeople, was left unfenced, so that B., who was lawfully passing along the way, the night being dark, without any negligence or default of her own, fell into the area, and was killed:-Held, that A. was liable under the 9 & 10 Vict. c. 93, to an action by the husband, as administrator, for the benefit of himself and B.'s infant children.

The declaration alleged that the defendant was possessed of a messuage with the appurtenances, near to a common and public footway, and that, in front of and before the said messuage, and parcel of the appurtenances thereof, and close to, and by the side of, the said footway, and abutting upon, and opening into, the same, there then was a large hole, vault, or area, which hole, vault, or area, the defendant, by reason of the possession of the said messuage, with the appurtenances, before and at the time when, &c., ought to have so sufficiently guarded and fenced as to prevent injury to persons lawfully passing in and along the said footway :-Held, that the duty of the defendant to fence the area, was properly alleged:

Held also, that the judge at the trial was justified in amending the declaration, by adding the words in italics.

In such a case, the declaration need not negative the existence of any relations entitled to compensation, other than those on whose behalf the action purports to be brought.

THIS was an action upon the case brought by the plaintiff as administrator of Jane Barnes, deceased, under Lord CAMPBELL'S act, 9 & 10 Vict. c. 93, *intituled "An Act for compensating the families of [*393 persons killed by accident," to recover damages from the defendant, the owner of land adjoining a public footway, for negligence in leaving unfenced an excavation on his land, and thereby causing the death of the intestate.

The declaration alleged that the defendant, before and at the time, &c., was possessed of a messuage, with the appurtenances, near to a common and public footway, in front of and before which said messuage, and parcel of the appurtenances thereof, and close to and by the side of the said footway, and abutting upon and opening into the same, there then was a large hole, vault, pit, or area, which said hole, vault, pit, or area, the defendant, by reason of the possession of the said messuage [with the appurtenances], (a) before and at the said time when, &c., (a) These words were added on amendment at nisi prius.

30 Eng 149:

220

ought to have so sufficiently guarded, fenced off, and railed in, as to prevent damage or injury to any person or persons lawfully passing in and along the said footway: yet that the defendant, whilst he was so possessed of the said messuage, and the said hole, vault, pit, or area, and premises, with the appurtenances, and whilst there was such hole, vault, pit, or area, on, &c., wrongfully, and contrary to his duty in that behalf, permitted and suffered the said hole, vault, pit, or area to be and continue, and the same was then so wholly unguarded, and not fenced off or railed in, that, by *means of the premises, and for want

*394] of proper and sufficient guarding, fencing off, and railing in of

the same, the said Jane Barnes, who was lawfully passing in and upon the said footway, slipped and fell into the said hole, vault, pit, or area, and was thereby killed: To the damage, &c.: And thereupon the plaintiff, as such administrator as aforesaid, for the benefit of himself, the husband of the said Jane Barnes, and of Jane Barnes, her infant daughter, of the age of ten years, and of Elizabeth Barnes, her infant daughter, of the age of eight years, and of Robert Barnes, her infant son, of the age of six years, according to the form of the statute in such case made and provided, brought his suit, &c.-Profert of letters of administration.

The defendant pleaded,—first, not guilty,-secondly, that he was not possessed of the said messuage, with the appurtenances, in manner and form, &c.,-thirdly, that he ought not, by reason of his possession of the said messuage, with the appurtenances, to have guarded, fenced off, and railed in the said hole, vault, pit, or area, in manner and form, &c. On these pleas the plaintiff joined issue.

The cause was tried before COLTMAN, J., at the sittings at Westminster, after Easter term, 1847. The facts were as follows:-The deceased, Jane Barnes, between eight and nine o'clock in the evening of the 26th of October, was proceeding, in company with her sister and a child, along an unfinished pathway near a row of houses then in the course of erection by the defendant, a builder, called Victoria Grove Terrace, in the Uxbridge Road. It being dark, and no light near, the deceased accidentally fell down the area in front of one of the houses, and died shortly afterwards, from the injuries she thus sustained. It appeared that the deceased was sober at the time of the accident, and that there was no fence to guard the area, but merely a low stone coping *395] *for the reception of iron railings. It further appeared that there had always been a thoroughfare; but the evidence as to the particular part of the newly-formed road which had constituted the ancient pathway, was somewhat confused. The land belonged to the Bishop of London, by whom it had been leased for terms of years to various persons, under one of whom the defendant held the premises in question. On the part of the defendant, it was contended,-first, that there was no sufficient evidence that the footpath was a public way,-secondly,