(Levy v. Hamer, 5 Exch. 518), for an obvious reason, which equally applies to a writ of ca. sa. to fix bail.

This section leaves untouched R. G., H. T. 1853, r. 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 Middlesex, be entered four clear days in the public book at the sheriff's office.

on judgment

SCIRE FACIAS on Judgment of Assets IN FUTURO. 91. Proceedings against executors upon a judgment Scire facias of assets in futuro may be had and taken in the man- of assets in ner provided by "The Common Law Procedure Act, futuro. 1852," as to writs of revivor.

This section seems supplementary to C. L. P. A. 1852, s. 132 (p. 102), ante.

If, on a plea of plene administravit, the plaintiff takes 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 Exch. 203).

If upon this writ of sci. fa., assets are found for part, the plaintiff may have judgment to recover so much immediately, and the residue of the assets in futuro (1 Wins. Saund. 336 b). As to what must be stated in the writ of sci. fa. on a judgment of assets in futuro, see 2 Wms. Saund. 218 a.

See generally as to practice on writs of revivor, C. L. P. A. 1852, ss. 131-134, and notes, ante.

continuance

or abandon

ment of acof death.

tion in case

92. Where an action would, but for the provisions To compel of "The Common Law Procedure Act, 1852," have abated by reason of the death of either party, and in which the proceedings may be revived and continued 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, and to have judgment for the costs of the action and suggestion against the plaintiff, or against the person entitled 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.

The C. L. P. A. 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 (which see pp. 103-111, supra) were all in favour of the plaintiff. This section enables 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 to be by summons at chambers.

A defendant may probably 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, under C. L. P. A. 1852, s. 40, ante.

The surviving wife, in respect of claims which survive to her; the legal representative of the husband in respect of his rights of action; are the parties to be called upon to proceed with the action.

In case of the death of one or more of several plaintiffs, or of 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 (C. L. P. A. 1852, s. 136); and this, 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. & P. 740).

If one of several plaintiffs or defendants dies 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 (C. L. P. A. 1852, s. 137, ante), and proIceed with the action.

In the case of the death of a sole, or sole surviving defendant, the legal representative may now call upon the plaintiff to proceed (C. L. P. A. 1852, s. 138, ante), and, in default, enter a suggestion, and sign judgment under this section.

The C. L. P. A. 1852, s. 190, ante, provides that the death of a claimant or defendant, in EJECTMENT, shall not cause the action to abate. The enactments of that 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 of a sole surviving defendant (ss. 195-199).

The death of either party, between verdict and judgment, cannot be alleged for error, if judgment be entered up within two

* See as to jurisdiction of judge at chambers, p. 259, post.

terms after verdict (C. L. P. A. 1852, s. 139, ante); 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, ante).

Marriage does not now cause the action to abate (Ib. s. 140, ante).

Proceedings in error do not now 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, ante).

In case of the death of one of several plaintiffs in error, the defendant may, under this section, 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, ante).

In case of the death of a sole plaintiff or sole surviving plaintiff in error, if the legal representative fails to enter a suggestion of the death, which he may do (Ib. s. 163, ante), the defendant, instead of calling upon him to do so, may go on to an affirmance of the judgment; but he will be obliged to revive the judgment against the representative, in order to have execution (2 Wms. Saund. 101 t).

EJECTMENT.

ment for

same premises against fendant may

same de

give security

for costs.

93. If any person shall bring an action of ejectment Claimant in after a prior action of ejectment for the same premises second ejecthas been or shall have been unsuccessfully brought by such person, or by any person through or under whom he claims, against the same defendants, or against any person through or under whom he defends, the court be ordered to or a judge may, if they or he think fit, on the application of the defendant at any time after such defendant has appeared to the writ, order that the plaintiff shall give to the defendant security for the payment of the defendant's costs, and that all further proceedings in the cause shall be stayed until such security be given, whether the prior action has been or shall have been disposed of by discontinuance, or by nonsuit, or by judgment for the defendant.

The C. L. P. A. 1852, s. 207 (p. 145), ante, provided, that the effect of a judgment in the new action of ejectment, which it introduced, should be the same as that of a judgment in the old action of ejectment, which it abolished.

The several courts and the judges thereof were further authorized to exercise over the new proceedings the jurisdiction theretofore exercised in the old action of ejectment, so as to ensure a trial of the title, and for all other purposes for which such jurisdiction might theretofore have been exercised (Ib. s. 221, p. 159, ante).

Costs of

The courts, in virtue of this summary jurisdiction, invariably former trial. stayed proceedings in a second action of ejectment, brought in substance to try the same title which had been decided in the first action, until the costs of the former ejectment had been paid (Keene d. Angel v. Angel, 6 T. R 7409; Doe d. Langdon v. Langdon, 5 B. & Ad. 864). Nor is it necessary to bring the case within the rule that the ejectment shall be between the same parties (Doe d. Hamilton v. Hatherley, 2 Str. 1152; Keene d. Angel v. Angel, supra). Thus, where the son and heir of the claimant in a former ejectment brought an action for different premises against the same defendant, and claimed under the same title, proceedings were stayed; and this although the claimant in the first action was discharged as an insolvent, while in custody under attachment for non-payment of such costs (Doe d. Heighley v. Harland, 10 A. & E. 761). So proceedings in the first action were stayed, where it appeared that the second action would turn upon the same question of title which was decided in the first action, though different premises were claimed and a different person made defendant (Doe d. Brayne v. Bather, 12 Q. B. 941). But the court would not stay proceedings until the taxed costs of a suit in equity, brought by the same party for the same premises had been paid (Doe d. Williams v. Winch, 3 B. & A. 602).

But the court would not compel the claimant to give security for the costs of the second ejectment (Doe d. Selby v. Alston, 1 T. R. 491), as may now be done under this section.

Security for Costs generally.

An application to compel the plaintiff to give security for costs must, in ordinary cases (see Gell v. Curzon, 4 Exch. 813), be made before issue joined (R. G., H. T. 1853, r. 22); but it can only be made after appearance in an ordinary action (Cole v. Beardy, 5 Dowl. 161), and also in cases under this section.

In order to have a stay of proceedings in the rule nisi, in an application for security for costs, a demand must be made to the claimant, before the court or a judge is applied to (Bailie v. De Beruales, 1 B. & A. 331). Two days' notice of the application must also be served on the claimant (R. G., H. T. 1853, r. 160); but this notice is not equivalent to a demand of security (Huntley v. Bulmer, 6 Dowl. 633).

Irrespectively of the provisions of this section. security for costs may be ordered wherever the plaintiff, or, if several, where all the plaintiffs (M'Connell v. Johnstone, 1 East, 431; Thomel v. Roelants, 2 C. B. 290) permanently (Henshen v. Garves, 2 H. Bl. 383; Nelson v. Ogle, 2 Taunt. 253: Foss v. Wagner, 2 Dowl. 499) reside anywhere out of the jurisdiction (Baxter v. Morgan, 6 Taunt. 379; Chevalier, exors. &c. v. Finnis, 1 B. & B. 277; Limerick Railway Company v. Fraser, 4 Bing. 394; Tambisco v. Pacifico, L. J. 21, Ex. 276). But a distinction is made between domiciled Englishmen on the one hand, and other British subjects and foreigners, strictly so called on the other (Chappel v. Watt, L. J. 29, Q. B. 167). In the case of an Englishman, the absence that entitles a defendant to security for costs must be voluntary, as distinguished from absence in the service of the state (Whitall v. Campbell, 8 W. R. 450, Ex). Where a plaintiff's body is at the disposal of the crown, as where he is confined (even in England) under sentence of transportation, security may be required (Barrett v. Power, L. J. 23, Ex. 162).

The possession by the plaintiff of real property available to process against him, is an answer to an application for security for costs, unless the plaintiff be a foreigner (Swinburne v. Carter, L. J. 23, Q. B. 16; per Crompton, J., B. C.).

Peers (Lord Nugent v. Harcourt, 2 Dowl. 636) and others (Duke de Montellano v. Christian, 5 M. & S. 509) who are privileged from personal process are, as a consequence, and because their persons are for purposes of execution beyond the reach of the ordinary civil process of the courts, exempt from liability to give security for costs; but foreign sovereigns are not thus exempt (Otho, King of Greece v. Wright, 6 Dowl. 12).

Security may be required from foreign companies (Limerick Railway Company v. Fraser, ubi supra).

Defendants in replevin, and in interpleader, are upon the same footing in respect to security for costs, as plaintiff's in other actions (but see Ridgway v. Jones, L. J. 29, Q. B. 97; Selby v. Crutchley, 1 B. & B. 505; Benazech v. Bessett, 1 C. B. 313; Williams v. Crossling, 4 D. & L. 660).

The poverty of a plaintiff is, by itself, no ground for ordering security for costs (Gregory v. Eldridge, 2 C. &. M. 336; Ross v. Jacques, 8 M. & W. 135); but where a person in insolvent circumstances sues substantially (Tenant v. Brown, 5 B. & C. 208), on behalf of another, security for costs may be required (Goatley v. Emmart, L. J. 24, C. P. 38).

See generally upon the subject of security for costs, Chit. Arch. Prac., 10th ed., index, title "security for costs:" and see Whitall v. Campbell, ubi supra, where it was held that a former servant of the East India Company, whose services had been transferred to the crown by virtue of the 21 & 22 Vict. c. 106, was, while in India on such service, exempt from giving security for costs upon suing here; also Chapple v. Watt, ubi supra, where it was held that an officer, not shown to have any residence in England, and who was a native of Ireland, and serving with his regiment there, was not exempt from being compelled to give security for costs in an action brought by him, inasmuch as it did not appear that he was removed out of the jurisdiction by the orders of the crown. A defendant residing abroad who has brought error, and has not put in bail in error, may be required to give security for costs (Hill v. For, cited p. 114, ante).

See as to security for costs under "The Joint Stock Companies Act, 1857," s. 24 (Australian Steam Ship Company v. Fleming, 4 Kay & J. 407).

94. No writ of execution issued before the twentyfourth day of October, one thousand eight hundred and fifty-two, if unexecuted, shall remain in force for more than six calendar months after the twenty-fourth day of October, one thousand eight hundred and fiftyfour, unless the same be renewed as hereinafter mentioned; but all such writs may be renewed from time to time in the same manner as writs issued after the twenty-fourth day of October, one thousand eight hundred and fifty-two, may now be renewed under the "Common Law Procedure Act, 1852," s. 124.

95. The superior courts may appoint and hold Courts may sittings either in banco, or for the trial of issues in appoint sit

tings.