Page images
PDF
EPUB

expense of the other party applying to set aside, he may serve a notice on such opponent to this effect, and offering to pay all expenses caused by the irregularity. If this offer is refused, the opponent will be made to pay all costs of making the rule absolute subsequent to the offer. (1)

5. Costs.]-If the rule is made absolute and costs are asked by the rule, it is generally made absolute with costs ;(*) if the rule is moved without costs, it is made absolute with or without costs according to circumstances. (3) Thus, if the application should have been made at chambers, the rule will generally be made absolute without costs.(*) "In all cases where a rule is obtained to show cause why proceedings should not be set aside for irregularity with costs, and such rule is afterwards discharged generally, without any special direction upon the matter of costs, it is to be understood as discharged with costs."(5) A judge at chambers gives costs in the same way as the court, and if he refuse costs, the party cannot thereafter apply to the court for those costs. (*) If the party on obtaining a rule absolute refuse to consent to bring no action, he will seldom be allowed costs. the costs are not allowed on making the rule absolute, they cannot be recovered as damages in an action brought in respect of the irregularity.(7) The costs must be paid to the party alone who obtains the rule, if he is one of several defendants.() If a judge set aside an irregular judgment, signed by the plaintiff, with costs, he has power to stay proceedings till such costs are paid,(") and will do so, unless the defendant issue an attachment for the costs and take the plaintiff thereupon.

If

(1) Briscowe v. Beckett, 4 M. & R. 100; Halton v. Stocking, 2 Cr. & J. 60.

(2) Tilley v. Henley, 1 Chitt. R. 136; Edwards v. Danks, 4 Dowl. 357.

(3) Ibid.; Anon. 1 Chitt. R. 390; Duncombe v. Crisp, 2 Dowl. 5; Re Morrison, 8 Dowl. 94.

(4) White v. Feltham, 16 L. J. 14, C. P. ; 3 C. B. 658.

(5) Rule Pr. 137, H. T. 1853.

(6) Davy v. Brown, 1 Sc, 384; Doe Prescott v. Koe, 1 Dowl. 274; 2 M. & Sc. 119.

(7) Loton v. Devereux, 3 B. & Ad. 343.

(8) Showler v. Stokes, 2 D. & L. 2.
() Wenham v. Downes, 5 N. & M. 244.

CHAPTER XXXVIII.

DEATH OF A PARTY DURING ACTION.

"THE death of a plaintiff or defendant shall not cause the action to abate, but it may be continued as hereinafter mentioned."(1)

Death of one or more plaintiffs or defendants.]—" If there be two or more plaintiffs or defendants, and one or more of them should die, if the cause of such action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant 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."(2) The death of the wife abates an action brought by her and her husband for a debt due to her dum sola.(3)

Death of sole plaintiff.]-"In case of the death of a sole plaintiff or sole surviving plaintiff, the legal representative of such plaintiff may, by leave of the court or a 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."()

(1) C. L. P. Act, 1852, s. 135.

(2) Ibid. s. 136.

Checchi v. Powell, 6 B. & C. 253; 9 D. & R. 243.

Form of Affidavit to obtain Leave.

[Title of court and cause.]

I, E. F., of

make oath and say

1, 2, 3. [State the stage of the cause shortly, and death of plaintiff.] 4. That the said A. B., by his last will and testament, appointed me the executor thereof, and that I duly proved the same on the

and thereby became his legal representative [or, that the said A. B. died intestate, and that on letters of administration of his goods and I thereby became

and chattels were duly granted to me by the said A. B.'s legal representative.]

Death of sole defendant.]—"In case of the death of a sole defendant, or sole surviving defendant, where the action survives, (1) 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 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

(1) See as to right of action surviving, ante, p. 651.

have arrived at issue, the new defendant, besides pleading to the suggestion, shall continue the pleading 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."(1) This section puts the executor or administrator in the same position as if he had been the original defendant; and, therefore, if the plaintiff discontinue after the suggestion, he will be allowed to do so only on payment of all the costs of the cause.(2)

Form of Suggestion of Death of one of several Plaintiffs.

the said A. B.

And hereupon, that is to say, on the suggests and gives the court here to understand and be informed, that [after the issuing of the said writ, or, after the plaintiff's declared as aforesaid, or, as the case may be], the said E. F. died. Therefore, let no further proceedings be had in this cause at the suit of the said E. F.

Form of Suggestion of Death of one of several Defendants. And the said A. B. suggests and gives the court here to understand and be informed, that after, &c., the said G. H. died. Therefore, let all further proceedings in this cause against the said G. H. be stayed.

Form of Suggestion of Death of sole Plaintiff.

And hereupon, on

comes E. F., by the said P. A., his attorney, and by leave of the Honourable Mr. Justice , suggests and gives the court here to understand and be informed that after, &c., the said A. B. died, and that he, the said E. F., is the executor of his last will and testament, [or is administrator of all and singular the goods and chattels which were of the said A. B. at the time of his death, who died intestate.]

Form of Suggestion of Death of sole Defendant.

[The form is similar, and add, that the cause of action survives against his personal representatives.]

(1) C. L. P. Act, 1852, s. 138.

Form of Notice requiring Representative of Defendant to

appear.

Take notice that I, [or A. B.] commenced an action against C. D., since deceased, by a writ of summons issued out of

on

[ocr errors]

tested

, and that the document hereto annexed, marked A, is a true copy of that writ, and that proceedings in that action were duly taken against the said C. D., and that I have entered a suggestion on the said proceedings of the death of the said C. D., and that you are executor, &c. [or administrator, &c.], and a copy of the suggestion made therein is hereunto annexed, marked B. And further take notice, that you are required, within eight days after service of this notice, inclusive of the day of such service, to appear or cause an appearance to be entered for you in the said court to the said action. And that in default of your so doing, the said C. D. may sign judgment against you as such [executor] as aforesaid Dated. &c.

To G. H.

A. B. of

Death between verdict and judgment.]—"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."(1) A judgment so entered up binds the lands in the hands of the heir.() The statute does not apply to a nonsuit; (3) and if the defendant is delayed by the plaintiff seeking to set aside the nonsuit, the action does not abate. (*) An information at the suit of the Crown does not so abate.(5) The statute applies to all personal actions for costs as well as for contracts,() but not to the death of a party before the sittings or assizes,(7) though it does, if the death is after the first day of the assizes or sittings.() If the judgment be entered up within the two terms, it has the same effect as if entered up during the life of the deceased party.() Where, at the trial, a verdict was taken subject to a reference, the two terms counted from the complete verdict, viz., the date of the award. (1) Though the statute requires the judgment to be

(1) C. L. P. Act, 1852, s. 139; 17 Car. 2, c. 8, s. 1.

(2) Saunders v. McGowan, 12 M. & W. 221; 3 D. & L. 405. (3) Dowbiggin v. Harrison, 10 B. & C. 480.

Bull v. Price, 5 M. & P. 413; 7 Bing. 237.

Attorney-General v. Buckley, Park, 264.

Palmer v. Cohen, 2 B. & Aid. 966.

(1) Taylor v. Harris, 3 B. & P. 549.

Anon. 1 Salk. 8; 7 T. R. 32; Jacobs v. Miniconi, 7 T. R. 31;

Johnson v. Bridge, 3 Dowl. 207.

(9) Freeman v. Rosher, 13 Q. B. 780. (10) Heathcote v. Wing, 11 Exch. 355.

« EelmineJätka »