of such provisions as are thereinafter expressly stated to be intended to come into operation immediately after the passing thereof, comes into operation at the same time as "The Merchant Shipping Act, 1854," (s. 3), that is to say, on the first day of May, 1855.* The fourth section of the statute provides that there shall be thereby repealed: The several Acts and parts of Acts set forth in the first schedule thereto, to the extent to which such Acts or parts of Acts are therein expressed to be repealed. The 53 Geo. III. c. 159, "An Act to limit the liability of shipowners in certain cases," is mentioned in the first schedule, and the extent of repeal is stated to be "The whole Act." 66 66 66 The fourteenth section of "The Merchant Shipping Repeal Act, 1854," is in the following terms :-"The provisions contained in the ninth part of The Mer"chant Shipping Act, 1854,' shall come into operation at "the same time as if the same were herein repeated, and were hereby expressed to be intended to come into operation immediately after the passing of this Act; "and the following Acts, that is to say, the Act of the "seventh year of King George the Second, chapter fifteen, "the Act of the twenty-sixth of King George the Third, "chapter eighty-six, and the Act of the fifty-third year "of King George the Third, chapter one hundred and fifty-nine, shall be considered as repealed immediately "after the passing of this Act." 66 dence. 89. Any person who shall, upon any examination False eviupon oath or affirmation, or in any affidavit in proceedings under this Act, wilfully and corruptly give false evidence, or wilfully and corruptly swear or affirm anything which shall be false, being convicted thereof, shall be liable to the penalties of wilful and corrupt perjury. 90. Writs of execution to fix bail may be tested and Execution to returnable in vacation. * Merchant Shipping Act, 1854, s. 3. †This provision might have been usefully extended to writs of subpoena, which must be tested in term. It is nothing unusual for a writ of subpoena to be tested of a term, preceding the date of the writ of summons. fix bail. This section repeals Reg. Gen. Hil. Term, 1853, 74, in so far as it relates to writs of ca. sa, to fix bail, being made returnable on a day certain in term. The writ must still be made returnable on a day certain. Proceedings to outlawry could not be founded on a ca. sa. returnable "immediately after the execution thereof" (Levy v. Hamer 5 Ex. 518) for an obvious reason, which equally applies to a writ of ca. sa, to fix bail. This section leaves untouched Reg. Gen. Hil. Term., 1853, 75, which requires that a writ of capias ad satisfaciendum to fix bail shall have eight days between the teste and return, and must, in London or Middlex, be entered four clear days in the public book at the sheriff's office. Scire facias 91. Proceedings against executors upon a judgment on judgment of assets in futuro may be had and taken in the manner provided by "The Common Law Procedure Act, 1852," as to Writs of Revivor. of assets in futuro. If on a plea of plene administravit, the plaintiff take judgment of assets quando acciderint, and assets afterwards come into the hands of the executor, the plaintiff must sue out a scire facias against the executor, before he can have execution, (2 Wms. Saund. 219, n. (2); Smith v. Tateham, 2 Ex. 203. If upon this writ of sci. fa. assets be found for part, the plaintiff may have judgment to recover so much immediately, and the residue of the assets in futuro (1 Wms. Saund. 336 b.). As to what must be stated in the writ of sci. fa. on the judgment of assets in futuro, see Wms. Saund. 218 a. The proceedings on such a judgment are to be taken in the manner provided as to writs of revivor. The writ must, therefore, be directed to the party called upon to show cause why execution should not be awarded, and bear teste on the day of its issuing. After reciting the reason why such writ has become necessary, it must call upon the party, to whom it is directed, to appear, within eight days after service thereof, to show cause why the party at whose instance such writ has been issued should not have execution against the party to whom such writ is directed, and give notice that, in default of appearance, the party issuing such writ may proceed to execution.* It must be sued out of the court in which the judgment was given; and, as it is a judicial writ, it must * Common Law Procedure Act, 1852, s. 181. strictly pursue the judgment. (Panton v. Hale, 2 Salk. 598. Mara v. Quin, 6 T. R. 1.) The form of the writ may be that of a writ of revivor. It may be served in any county, and otherwise proceeded upon, whether in term or vacation, in the same manner as a writ of summons. The venue in the declaration may be laid in any county; and the pleadings and proceedings thereupon shall be in the same as in an ordinary action.* Notice in writing to the plaintiff, his attorney, or agent, will be a sufficient appearance.t By analogy to the former practice on proceedings by sci. fa. the writ, if irregular, may be quashed at the costs of the plaintiff, after appearance (Oliverson v. Latour, 7 Dowl. 605). It may be amended, also, to make it correspond with the record (Braswell v. Jeco, 9 East, 316), and this after a plea of nul tiel record (Perkins v. Petit, 1 B, and P. 275; Holland v. Phillips, 10 A. and E. 149, and the cases there referred to). The defendant will not be at liberty to plead to the declaration any matter which might have been pleaded or set up as a defence to the original action (Bradley v. Eyre, 11 M. and W. 432). Fraud, in obtaining the original judgment must be specially pleaded, though it may afford ground for moving to set aside the proceedings (Thomas v. Williams, 3 Dowl. 655; Dodgson v. Scott, 2 Ex. 457.) or abandon of death. 92. Where an action would, but for the provisions To compel of "The Common Law Procedure Act, 1852," have continuance abated by reason of the death of either party, and in ment of acwhich the proceedings may be revived and continued tion in case under that Act, the defendant or person against whom the action may be so continued, may apply by summons to compel the plaintiff, or person entitled to proceed with the action in the room of the plaintiff, to proceed according to the provisions of the said Act within such time as the judge shall order; and in default of such proceeding, the defendant or other person against whom the action may be so continued as aforesaid shall be entitled to enter a suggestion of such default, and of the representative character of the person by or against whom the action may be proceeded with, as the case may be, *Com. Law Proc. Act, 1852, s. 131. † Ibid., s. 133. tinuance or Proceedings and to have judgment for the costs of the action and sugto compel con- gestion against the plaintiff, or against the person entitled abandonment to proceed in his room, as the case may be, and in the latter case to be levied of the goods of the testator or intestate. of action in case of death. The Common Law Procedure Act, 1852, contains, several provisions with respect to the effect, upon the proceedings in an action, of the death, marriage, or bankruptcy of any of the parties. These enactments were all conceived in favour of the plaintiff. [INTRODUCTION, p. lxxxiv]. This section supplies an evident omission, by enabling defendants in all cases of a change of parties by death or otherwise, to bring the proceedings to a close, by compelling the person entitled to go on with the action to proceed therewith, or have a judgment of non-pros. signed against him. The proceedings under this section are, it will be observed, to be by summons at chambers only. The defendant may adopt this course in the case of the death of the husband, in an action brought by a man and his wife, for an injury done to the wife, where the husband has added claims arising to him in his own right. (Common Law Procedure Act, 1852, s. 40.) The surviving wife, in respect of claims which survive to her, the legal representative of the husband in respect of his rights of action, will be the party to be called upon to proceed with the action. In case of the death of one or more of several plaintiffs, or one or more of several defendants, the surviving plaintiffs, if the cause of action survives to them, are the parties to be called upon to enter a suggestion of the death (Common Law Procedure Act, 1852, s. 136); which, if the death happened before issue joined, should be made in the issue (Far. v. Denn, 1 Burr. 362); if after issue joined on the nisi prius record. (Rex v. Cohen, 1 Stark. N. P. 511.) The suggestion must be entered before any further proceedings can be taken (Pinkus v. Starch, 5 C. B. 474), and affidavits to be used in the cause after the death of any of the parties should be entitled in the names of the survivors only. (Larchin v. Buckle, 1 L. M. and P. 740.) If one of several plaintiffs or defendants die after judgment, execution by fi. fa. or ca. sa. may be had by or against the survivors. (2 Wms. Saund. 72 c.) In case of the death of a sole or sole surviving plaintiff, the legal representative is the person to be called upon to enter a suggestion of the death (Common Proceedings Law Procedure Act, 1852, s. 137), and proceed with the to compel conaction. tinuance or abandonment In case of the death of a sole or sole surviving of action in defendant, the legal representative may now call upon case of death. the plaintiff to proceed (Common Law Procedure Act, 1852, s. 138), and, in default, enter a suggestion and sign judgment under this section. The Common Law Procedure Act, 1852, s. 190, provides that the death of a claimant or defendant, in EJECTMENT, shall not cause the action to abate. The enactments of the statute, enabling a surviving claimant, or the legal representative of a claimant whose right does not survive, to enter a suggestion of the death (ss. 191, 192, 193, 194), are similar to the analogous provisions for the continuance of personal actions. The same observation applies to the enactments providing for the case of the death of a sole or sole surviving defendant (ss. 195, 196, 197, 198, 199). The death of either party, between verdict and judgment, cannot be alleged for error, if judgment be entered up within two terms after verdict (Common Law Procedure Act, 1852, s. 139); and the proceedings in actions which survive may, in the case of the death of either plaintiff or defendant between interlocutory and final judgment, be continued by or against the legal representative (Ib., s. 160). Practically marriage does not now cause the action to abate (s. 144), and the bankruptcy or insolvency of a plaintiff cannot be pleaded in bar, unless the assignees decline to continue and give security for costs (Ib., s. 142). These cases of abatement it is sufficient, therefore, merely to mention. Proceedings in error do not abate by the death of any of the parties to the action. Suggestions may be entered and the proceedings continued in the Court of Error, much in the same way as in the court below. (Ib., ss. 161-167.) In case of the death of one of several plaintiffs in error, the defendant may now call on the survivors to enter a suggestion, and the proceedings may thereafter be continued against the surviving plaintiff, as if he were the sole plaintiff (Ib., s. 162). In case of the death of a sole plaintiff or sole surviving plaintiff in error, if the legal representative fails to enter |