(b) See ante secs. 17, 18, 28.

(e) The defendant cannot, however, set up defences, which might have been pleaded to the original action; Bradley v. Eyre, 11 M. & W. 432; Phillipson v. Earl of Egremont, 6 Q. B. 587.

If the original judgment had been obtained collusively, such fraud may be pleaded, or a motion may be made to the Court to set aside the proceedings as fraudulent; Ib. 6 Q. B. 605; Dodgson v. Scott, 2 Exch. R. 457.

in other

proceeded

CXXXII. All writs of scire facias issued out of Writs of any of the superior courts of law at Westminster scire facias against bail on a recognizance; ad audiendum cases to be errores; against members of a joint stock company tested, dior other body, upon a judgment recorded against a rected, and public officer or other person sued as representing upon in like such company or body, or against such company or manner. body itself; by or against a husband to have execution of a judgment for or against a wife; for restitution after a reversal in error; upon a suggestion of further breaches after judgment for any penal sum, pursuant to the statute passed in the session holden in the eighth and ninth years of the reign of King William the Third, intituled "An Act for the better preventing frivolous and vexatious Suits;" or for the recovery of land taken under an elegit, shall be tested, directed, and proceeded upon, in like manner as writs of revivor.

The effect of this section will be, that all the rules (not inconsistent with this act) will hereafter apply to the proceedings mentioned in this section, though some of such proceedings, e. g. against bail on a recognizance, are not in continuation of an action within those rules. See as to this, 2 Chit. Arch. 1030, 1031.

CXXXIII. Notice in writing to the plaintiff, his Appearance attorney or agent, shall be sufficient appearance to a writ of revivor.

See R. H., 2 Wm. 4, r. 82; and for a form of notice, see Chit. Forms, 454. By R. H., 16 Vict., r. 78, "a plaintiff shall not be allowed a rule to quash his own writ of scire facias, or revivor, after a defendant has appeared, except on payment of costs;" post p. 175.

to writ of revivor.

As to issue

of writ of

revivor up

on judgment

more than ten years

old.

Death,

CXXXIV. A writ of revivor to revive a judgment less than ten years old shall be allowed without any rule or order; if more than ten years old, not without a rule of court or a judge's order; nor, if more than fifteen, without a rule to show cause.

Formerly, before suing out a writ of scire facias to revive a judgment after seven years, and before ten, it was necessary to obtain a side bar rule. The latter part of this section is similar to R. H., 2 Wm. 4, r. 79.

The affidavit to support the application should state the existence of the debt, that the judgment remains unsatisfied, and that the defendant is still living (or as the case may be), 2 Chit. Arch. 1026, and Chit. Forms, 442, 443.

And with respect to the effect of death, marriage, Marriage, and bankruptcy upon the proceedings in an action, Bankruptcy, be it enacted as follows:

and

Action not

CXXXV. The death of a plaintiff or defendant to abate by shall not cause the action to abate, but it may be continued as hereinafter mentioned.

death.

Proceedings

in case of

death of one

several

For provisions in case of death of either party in proceedings in error, see secs. 161 to 166, and in ejectment, see secs. 190 to 199.

CXXXVI. If there be two or more plaintiffs or defendants, and one or more of them should die, if or more of the cause of such action shall survive to the surviving plaintiff or plaintiffs, or against the surviving deplaintiffs or fendant or defendants, the action shall not be thereby abated; but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs against the surviving defendant or defendants.

defendants.

This section re-enacts the provisions in 8 & 9 Wm. 3, c. 11, s. 7.

The entry of the suggestion is a condition precedent to the further prosecution of the cause; Barnewall v. Sutherland, 19 L. J., C. P., 291, 1 L. M. & P. 165, S. C., per Maule, J. It has been held that the suit is abated by the death of a co-plaintiff, unless the suggestion be entered; R. v. Cohen, 1 Stark. 511, per Lord Ellenborough, C. J. And, it is apprehended, that this would be so still, since the express words of sec. 135 are not stronger than the

words in sec. 136, which are adopted from 8 & 9 Wm. 3, c. 11, s. 7, and which received the construction above mentioned.

The suggestion should be entered on the next pleading, if the death take place before issue joined, and on the nisi prius record, if the death occur after issue joined; and no subsequent proceeding, as for judgment as in case of a nonsuit, &c., can be taken before such suggestion is entered. (See Pinkus v. Sturch, 5 C. B. 474; Larchin v. Buckle, 1 L. M. & P. 740).

See, for forms of suggestion, 1 Chit. Forms, 625, 626.

in case of

CXXXVII. In case of the death of a sole plain- Proceedings tiff or sole surviving plaintiff, the legal representa- sole plaintive of such plaintiff may, by leave of the court or a tiff. judge, enter a 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.

of sole or

fendant.

CXXXVIII. In case of the death of a sole de- Proceeding fendant or sole surviving defendant, where the action upon death survives, the plaintiff may make a suggestion, either sole surin any of the pleadings, if the cause has not arrived viving deat 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 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 nonappearance after such notice, as upon a writ against such executor or administrator in respect of the cause for which the

E

Death be

tween ver

dict and

judgment.

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.

CXXXIX. The death of either party between the verdict and the judgment, shall not hereafter be alleged for error, so as such judgment be entered within two terms after such verdict.

This section re-enacts the provisions in 17 Car. 2, c. 8, s. 1. The intention of the statute was to make a verdict obtained against a party, who dies before judgment is signed, equivalent to a judgment entered up during the lifetime of such party, if entered up within two terms; Saunders v.

M'Gowran, 12 M. & W. 221; Burnett v. Holden, 1 Lev. 277. It does not apply to cases of nonsuit; Dowbiggin v. Harrison, 10 B. & C. 480.

Where, by consent of both parties, leave was given to the defendant at the trial to move to enter a verdict, and he died after the trial, and before the next term, a motion to enter a verdict for the defendant may be made without putting the executors on the record, or making them parties to the rule; Freeman v. Rosher, 18 L. J., Q. B. 340, 13 Q. B. 780, S. C.

in case of

death after

before final

CXL. If the plaintiff in any action happen to die Proceedings after an interlocutory judgment, and before a final judgment obtained therein, the said action shall not interlocuabate by reason thereof, if such action might be tory, and originally prosecuted or maintained by the executor judgment. 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 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 judgment, 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 herein before provided (a); 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