*

in case of

tiff.

137. In case of the death of a sole plaintiff or sole Proceedings surviving plaintiff, the legal representative of such the death of plaintiff may, by leave of the court or a judge, enter a sole plaina suggestion of the death, and that he is such legal representative, and the action shall thereupon proceed; and, if such suggestion be made before the trial, the truth of the suggestion shall be tried thereat, together with the title of deceased plaintiff, and such judgment shall follow upon the verdict in favour of or against the person making such suggestion, as if such person were originally the plaintiff.

The entry of this suggestion mnst be made before any further proceeding in the action (s. 136, n., ante, p. 116). It can be made only by leave of the court or a judge. The suggestion, it would appear, is traversable (Watson v. Quilter, 1 D. & L. 244), and the truth of it, if made before trial, may be tried thereat. In Barnwell v. Sutherland (1 L. M. & P. 159) the action had proceeded to trial, in the name of a public officer, substituted immediately before the trial, in the place of one who had died, and whose death was suggested on the record; and the verdict was set aside, as the suggestion had been entered without the authority of the court, and without an opportunity being given to the defendant to traverse the fact suggested. In this case, in which are collected all the cases relating to the entry of suggestions, a point was raised, but not decided, whether (if a suggestion was traversable) the time between the 10th of August and 24th of October was excluded from the computation of time to plead. It was contended that to extend the 2 Will. 4, c. 39, s. 11, in this way, would have excluded a plea puis darrein continuance during the same period; and it may be observed, that by s. 69 (ante, p. 69), it is expressly enacted, that a plea puis darrein continuance may be pleaded between 10th August and 24th October.

See as to proceedings by a defendant upon abatement by death, C. L. P. A. 1854, s. 92, post.

138. In case of the death of a sole defendant or sole surviving defendant, where the action survives, the plaintiff may make a suggestion, either in any of the pleadings, if the cause has not arrived at issue, or in a copy of the issue, if it has so arrived, of the death, and that a person named therein is the executor or administrator of the deceased; and may thereupon serve such executor or administrator with a copy of the writ and suggestion, and with a notice, signed by the plaintiff or his attorney, requiring such executor or administrator to appear within eight days

C. L. P. A. 1854, s. 92.

Proceeding

of sole or sole surviving de

upon death

fendant.

* The words "where the action survives," which are in the following section, are not used here, but this section must be construed as if those words were inserted in it (Flinn v. Perkins, L. J. 32, Q. B. 10, cited in note to s. 135, ante, p. 116).

after service of the notice, inclusive of the day of such service, and that in default of his so doing the plaintiff may sign judgment against him as such executor or administrator; and the same proceedings may be had and taken in case of non-appearance after such notice as upon a writ against such executor or administrator in respect of the cause for which the action was brought; and in case no pleadings have taken place before the death, the suggestion shall form part of the declaration, and the declaration and suggestion may be served together, and the new defendant shall plead thereto at the same time; and in case the plaintiff shall have declared, but the defendant shall not have pleaded before the death, the new defendant shall plead at the same time to the declaration and suggestion; and in case the defendant shall have pleaded before the death, the new defendant shall be at liberty to plead to the suggestion, only by way of denial, or such plea as may be appropriate to and rendered necessary by his character of executor or administrator, unless by leave of the court or a judge he should be permitted to plead fresh matter in answer to the declaration; and in case the defendant shall have pleaded before the death, but the pleadings shall not have arrived at issue, the new defendant, besides pleading to the suggestion, shall continue the pleadings to issue in the same manner as the deceased might have done, and the pleadings upon the declaration and the pleadings upon the suggestion shall be tried together; and in case the plaintiff shall recover, he shall be entitled to the like judgment in respect of the debt or sum sought to be recovered and in respect of the costs prior to the suggestion, and in respect of the costs of the suggestion, and subsequent thereto, he shall be entitled to the like judgment† as in an action originally commenced against the executor or administrator.

This legislation is new. It would seem that the provisions of the first clause as to the service of a notice on the executor or administrator of a deceased defendant override the provisions in the clauses which follow; so that in all cases, the substituted defendant must have this notice served upon him, and in all cases, if he fails to appear, the plaintiff may sign judgment; and this even if the original defendant has pleaded, or the parties were, at the time of the death, at issue.

* This is judgment as to debt and costs de bonis testatoris only.

† This is judgment as to costs de bonis testatoris et si non de bonis propriis.

If a sole or sole surviving defendant dies after writ issued, and before declaration, the plaintiff should, in the declaration, suggest the death, and that a person therein named is executor or administrator of the deceased; and then serve on such executor or administrator a copy of the writ and declaration, and a notice requiring him to appear in eight days after service, otherwise judgment.

The substituted defendant must appear within the eight days, otherwise the plaintiff may sign judgment in default of appearance, and he must also plead within eight days after notice to plead, which may be given with the declaration, otherwise judgment by ail dicit may be signed (see p. 65, ante).

After writ issued and before declaration.

If the plaintiff has declared before the death of the original After decladefendant, but such defendant has not pleaded, the plaintiff ration and should serve the executor or administrator with a copy of the before plea. writ, and, with the suggestion above referred to, and with a notice requiring him within eight days to appear, and within eight days to plead to the suggestion and to the declaration.

If the original defendant has pleaded, the plaintiff may sug- After plea. gest the death in his replication, serve with the replication a copy of the original writ, the notice to appear above referred to, a notice to plead to the suggestion, and a notice to rejoin (s. 78, n. ente, p. 78). The substituted defendant will be entitled to eight days to appear and plead to the suggestion (s. 63, ante, p. 65), and so he gets eight days to rejoin.

The substituted defendant may only plead, as of right, in addition to the pleas of the original defendant, such pleas as are appropriate to his character of executor or administrator; but he may obtain leave from a judge to plead fresh matter to the declaration.

The substituted defendant, besides pleading to the suggestion, must continue the pleadings precisely as the deceased defendant ought to have done.

If the parties have been at issue before the original defendant's After issue death, the suggestion is to be made in the issue; a copy of which joined. is to be served with the notice to appear, and with a copy of the original writ.

Judgment in default of appearance seems to follow in all cases; the truth of the suggestion is triable as a collateral issue at the trial; and judgment, if for the plaintiff, follows the verdict as if the substituted executor or administrator had been originally sued.

Where a plaintiff discontinued, after appearance by an administratrix, she was held to be entitled to the whole of defendant's costs of suit (Benge v. Swaine, Administratrix, &c., 15 C. B. 784; L. J. 23, C. P. 182).

dict and

139. The death of either party between the verdict Death beand the judgment shall not hereafter be alleged for tween vererror, so as such judgment be entered within two judgment. terms after such verdict.

If either party dies after a special verdict, or special case, or during the argument of a motion in arrest of judgment, or for a new trial, judgment may be entered, at common law, after the death, as of the term in which judgment should have been given, nunc pro tunc (Carlisle v. Garland, 9 Bing. 85). So in the case of a verdict subject to an award, when the award is made in the

Proceedings

in case of death after

and before final judg

ment.

lifetime of both parties, but the successful party dies pending a rule to set it aside, judgment may be entered nunc pro tunc (Bridges v. Smith, 8 Bing. 29; see also Heathcote v. Wing, 11 Exch. 355; L. J. 25, Ex. 23). So where leave is given to the defendant to enter a verdict, and he dies after the trial and before the next term, the motion to enter the verdict may be made without putting the executors on the record, and the verdict entered accordingly (Freeman v. Rosher, 13 Q. B. 780). So, where a cause is referred to a barrister to state a special case, it may be stated after the death of one of the parties, and judgment entered accordingly (James v. Crane, 15 M. & W. 379). The delay being the act of the court, and not of the party, judgment is entered nunc pro tunc, that the parties may not be prejudiced (2 Wms. Saund. 72; and see Miles v. Williams, 9 Q. B. 47; Freeman v. Tranah, 12 C. B. 406; L. J. 21, C. P. 214; and Heathcote v. Wing, ubi supra; Moore v. Roberts, 3 C. B., N. S. 844, where, in the absence of a legal representative of the deceased plaintiff, his former attorney in the cause showed cause against a rule obtained by the defendant to enter judgment of nonsuit nunc pro tunc).

This section is in the words of 17 Car. 2, c. 8, s. 1. Under the similar provisions of that statute, it was held that the death of either party before the assizes was not remedied (this case is provided for by other sections of this statute); but if the party died after the assizes began, though the trial were after the death, it was within the remedy of the statute, the assizes being but one day in law: so if the party died after the first day of the sittings, and before trial, or at the adjourned sittings (Chetham v. Sturtevant, 1 D. & L. 631), the judgment is entered by or against the party as if he were living, and must be signed within two terms after the verdict; for signing it is an entering within this section (2 Wms. Saund. 72 n.; and see Frewin v. Lethbridge, 7 W. R. 442; Ex. E. T. 1859).*

This enactment is not confined to actions which would have survived; therefore, an executor may enter up judgment on a verdict obtained by the testator in an action for libel (Palmer v. Cohen, 2 B. & Ad. 966; Kramer v. Waymark, L. R. 1 Ex. 241).

A writ of revivor must follow the judgment, and recite it as entered in the lifetime of the party deceased; that is to say, it should be in the same form as where the writ is sued out by a personal representative upon a judgment entered up in the actual lifetime of the original party.

140. If the plaintiff in any action happen to die after an interlocutory judgment and before a final interlocutory judgment obtained therein, the said action shall not abate by reason thereof, if such action might be originally prosecuted or maintained by the executor or administrator of such plaintiff; and if the defendant die after such interlocutory judgment and before final judgment therein obtained, the said action shall not abate, if such action might be originally prosecuted or maintained against the executor or administrator of

* See as to entering up a judgment for purposes of execution, s. 206, and R. G., H. T. 1853, rr. 70, 71, post.

such defendant; and the plaintiff, or if he be dead after such interlocutory judgment, his executors or administrators, shall and may have a writ of revivor, in the form contained in the schedule (A.) to this act annexed, marked No. 9,* or to the like effect, against the defendant, if living after such interlocutory judg ment, or if he be dead, then against his executors or administrators, to show cause why damages in such action should not be assessed and recovered by him or them; and if such defendant, his executors or administrators, shall appear at the return of such writ, and not show or allege any matter sufficient to arrest the final judgment, or shall make default, a writ of inquiry of damages shall be thereupon awarded, or the amount for which final judgment is to be signed shall be referred to one of the masters, as hereinbefore provided; and upon the return of the writ, or delivery of the order with the amount indorsed thereon to the plaintiff, his executors or administrators, judgment final shall be given for the said plaintiff, his executors or administrators, prosecuting such writ of revivor, against such defendant, his executors or administrators respectively.

On the death of the plaintiff, the action does not abate; if it is Death of such as might have originally been maintained by the executor plaintiff. or administrator. An action for libel, not being such an action, does, therefore, abate by the death of the plaintiff, after interlocutory judgment, and after the execution of the writ of inquiry, if the death takes place before final judgment (Ireland v. Champneys, 4 Taunt. 884).

Neither on the death of a defendant does the action abate, if it Death of deis one which might have been maintained against the executors fendant. or administrators. Where, however, two defendants are jointly sued, and one dies after interlocutory and before final judgment, the plaintiff cannot proceed against the executors of the deceased, for the action, being joint, survives against the other defendant (Fort v. Oliver, 1 M. & S. 242).

In the case of the death of a defendant, when the action was Writ of one which might have been maintained against the executors or inquiry. administrators, it has been decided that, when the writ of inquiry had not been executed, the writ of sci. fa. ought to be for the executors or administrators to show cause why the damages should not be assessed and recovered against them (Tidd's Pract. Forms, 494; Smith v. Harmon, 1 Salk. 315). The writ of revivor given by this section is to the same effect; and if the executors do not appear, or, appearing, do not show matter sufficient to arrest the judgment, a writ of inquiry, or a reference to the master (s. 94 ante, p. 87), may be necessary.

Death of de

In the case of the death of a defendant after interlocutory judgment, and after the execution of a writ of inquiry, but before fendant after interlocutory

* This form seems more applicable in the case of death after final judg

ment.

D.

G