stopped and choked up the *sewers or drains of and belonging *785] to the said cottages, and which the plaintiff was and is entitled to have there, and which were and are necessary for the use and occupation of the same, and thereby prevented the same being drained: and that the defendant, by building and constructing the said last-mentioned coal cellar, thereby also prevented the plaintiff from making the last-mentioned drains or sewers to communicate with and run into the main sewer in the said street, for the purpose of draining the said cottages.

To that declaration, the defendant pleaded several pleas, upon which issue was joined on the 3d of March, 1853.

Notice of trial was given for the Sussex Spring Assizes in that year. On the 13th of March, which was the day before the commission day, the defendant Page died. On the 30th of September, Mary Swaine took out administration, and on the 10th of February, 1854, the plaintiff made a suggestion in the copy of the issue, in the following terms:— "And hereupon, that is to say, on the 10th day of February, 1854, the plaintiff suggests and gives the court here to understand and be informed that the said Thomas Page departed this life on the 30th day of March, 1853, and that Mary Swaine is administratrix of all and singular the goods and chattels which were of the said Thomas Page at the time of his death, who died intestate."

Copies of the above suggestion, and of the writ in this action were served upon Mary Swaine by the plaintiff on the 15th of April, 1854, together with a notice signed by the plaintiff's attorney in the cause, requiring her to appear within eight days after service thereof, inclusive of the day of such service. On the 21st of April, 1854, Mary Swaine, as such administratrix, in pursuance of such notice, duly entered an appearance, and on the 27th obtained an order to plead several matters to the suggestion, and on the same day delivered the following pleas :

*786]

"1. And the said defendant Mary Swaine, by S. F. L., her attorney, saith that the supposed wrongs in the said declaration mentioned were not, nor were any, nor was either of them, or any part thereof, committed by the said Thomas Page at any time within six calendar months next before the death of the said Thomas Page:

2. And for a second plea, the said Mary Swaine saith that she was not at any time within six calendar months next after she took upon herself the administration of the estate and effects of the said Thomas Page, deceased, served with a copy of the said writ or sugges tion, or with a notice signed by the plaintiff or his attorney requiring her the said Mary Swaine to appear within eight days after service of the said notice, inclusive of the day of such service.'

On the 8th of May, 1854, a summons was taken out, calling upon Mary Swaine, as such administratrix, to show cause why the plaintiff

should not be at liberty to discontinue on payment of the costs of the pleas to the suggestion; and thereupon Maule, J., before whom the matter was heard, on the 9th made an order that the plaintiff "be at liberty to discontinue on payment of costs, the plaintiff hereby undertaking to pay such costs when taxed, and consenting, that, in default of payment of such costs within ten days from the 31st instant, the defendant be at liberty to sign judgment of non pros.

Upon the taxation, the plaintiff's attorney protested against the master's taxing or allowing to the defendant any of the items in the defendant's bill of costs incurred previously to the service of the issue and suggestion and notice to plead upon the present defendant: but the master gave his allocatur for the whole costs of the action, amounting to 577. 18.

*Norman obtained a rule calling upon the defendant to show [*787 cause why the master should not be at liberty to review his taxation; or why, on payment by the plaintiff to the defendant, or her attorney, of the costs occasioned by the order of Maule, J., the plaintiff should not be at liberty to abandon the said order. He referred to the statutes 3 & 4 W. 4, c. 42, s. 2,(a) and 15 & 16 Vict. c. 76, s. 138,(6) and to the case of Wollen v. Smith, 9 Ad. & E. 505 (E. C. L. R. vol. 36), 1 P. & D. 375.

(a) Which, reciting that "there is no remedy provided by law for injuries to the real estate of any person deceased, committed in his lifetime, nor for certain wrongs done by a person deceased in his lifetime to another in respect of his property, real or personal," for remedy thereof enacts "that an action of trespass, or trespass on the case, as the case may be, may be maintained by the executors or administrators of any person deceased, for any injury to the real estate of such person, committed in his lifetime, for which an action might have been maintained by such person, so as such injury shall have been committed within six calendar months before the death of such deceased person, and provided such action shall be brought within one year after the death of such person; and the damages, when recovered, shall be part of the personal estate of such person; and, further, that an action of trespass, or trespass on the case, as the case may be, may be maintained against the executors or administrators of any person deceased, for any wrong committed by him in his lifetime to another in respect of his property, real or personal, so as such injury shall have been committed within six calendar months before such person's death, and so as such action shall be brought within six calendar months after such executors or administrators shall have taken upon themselves the administration of the estate and effects of such person; and the damages to be recovered in such action shall be payable in like order of administration as the simple contract debts of such person."

(b) Which enacts, that, "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 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

*Hawe showed cause.-Prior to the Common Law Procedure *788] Act, 1852, 15 & 16 Vict. c. 76, the action would have abated by the death of Page; but a fresh action might have been commenced within six months against the administratrix. The 138th section of that act, however, allows a suggestion of the death to be *en

*789] tered, the effect of which is to continue the action. That course has been adopted here, and the administratrix has pleaded to the suggestion, that the supposed wrongs were not committed by Page within six calendar months next before his death, and that she was not served with a copy of the writ or suggestion, or with notice, as required by the 15 & 16 Vict. c. 76, s. 138, within six months next after she took upon herself the administration of Page's estate. The plaintiff thereupon finding that he could not effectually proceed with the action, took out a summons for leave to discontinue on payment of the costs of the pleas to the suggestion. The learned judge before whom that summons came on to be heard made an order giving the plaintiff leave to discontinue on payment of costs generally. And the master has accordingly taxed the defendant the whole costs of the cause. There is no ground to find fault either with the order or the taxation. The administratrix is clearly entitled to the whole costs of the cause: the estate of the intestate is damnified to the extent of the whole costs. [JERVIS, C. J.-The estate would have lost the costs on the death of the defendant, if the action had not been continued under the 3 & 4 W. 4, c. 42, s. 2. MAULE, J.-The defence is, that the action does not survive.] The issues originally joined on Page's pleas are still to be tried, as well as the issues to be joined on the pleas to the suggestion. It is like the case of a plea of the statute of limitations; in which case the plaintiff is liable to costs if the plea is proved. [JERVIS, C. J.— Would the administratrix have been liable for the costs of the issues on the original pleas, if she had failed upon them, and succeeded upon. the other issues?] Yes, the estate would be liable. The concluding words of the 138th section draw a distinction between the two sets of costs.

*790]

The administratrix should have all the costs, just as the plaintiff would if he *had succeeded. [JERVIS, C. J.—The statute does not say what shall happen with respect to costs, if the de

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."

fendant succeeds. MAULE, J.-If a new action were brought, the pleadings would be the same.]

Then, as to the other branch of the rule,-Having acted upon the order, and taken his chance on it, the court will not allow the plaintiff now to abandon it.

Norman, in support of his rule.-The continuance of the suit against the personal representative within six calendar months after she had taken upon herself the administration of the estate and effects of the deceased, was a condition precedent. But for the special remedy given by the 3 & 4 W. 4, c. 42, s. 2, the action would have abated: the judge would have had no jurisdiction to try the matter at all. [CROWDER, J.—The plaintiff's remedy as against the administratrix is revived by the suggestion.] Yes. And, if the plaintiff pays her all the costs which she has incurred in consequence of his abortive attempt to make her a party, he pays her all she can in justice be entitled to. In Rex v. Cohen, 1 Stark. N. P. C. 511, one of two plaintiffs having died after issue joined, and the record having gone down to trial without a suggestion of that fact, according to the statute 8 & 9 W. 3, c. 11, s. 6, it was held that the trial was extrajudicial, and that consquently perjury could not be assigned upon any false evidence given thereon. If the plaintiff here were to carry the cause down for trial, the issues to be first tried would be those joined upon the pleas to the suggestion. If those issues were found for the defendant, there would be an end of the matter. In Garland v. Extend, 1 Salk. 194, 2 Ld. Raym. 992, the defendant having pleaded in abatement, the plaintiff demurred, and judgment was given for the defendant; and it was held that he was not entitled to costs upon the statute 8 & 9 W. 3,- for, the judgment *in this case is not given upon the merits, but quod billa cassetur; [*791 and the statute meant only to give costs where the merits of the cause were determined upon the demurrer. If judgment had been for the plaintiff upon this demurrer, it had not been final, but only a respondeas ouster, and the plaintiff could have had no costs by the statute, which, therefore, ought to have the same exposition as to the defendant." In Pocklington v. Peck, 1 Stra. 638, costs were not allowed where a scire facias was abated by a plea. Price v. Morgan, 1 P. & D. 376, 9 Ad. & E. 505 (E. C. L. R. vol. 36), very closely approaches the present case. A fiat in bankruptcy issued against the defendant on the 21st of April, 1837. A declaration in the cause was delivered on the 26th of October following, and on the 1st of November the defendant obtained his certificate, which he pleaded on the 25th of November puis darrein continuance, and there was no other plea. On the 10th of April, 1838, the plaintiff was ruled to reply, and on the 23d gave notice that he abandoned the action, and intended to prove under the defendant's commission. He then obtained an order to stay the proceedings, which was ultimately rescinded on the authority of Augarde v. Thompson, 2 M. &

W. 617.

On the 30th of June, the plaintiff entered a nolle prosequi, on which the master taxed the defendant his full costs. On the 25th of October, the plaintiff was served with notice, that, unless costs were paid within four days, judgment of non pros. would be signed. The court allowed the plaintiff to stay proceedings without costs. The principle of all these cases seems to be, that, where the action was originally brought properly, but, in consequence of something occurring subsequently, it becomes inexpedient to proceed with it, the plaintiff is not to be visited with costs. In the present case, the administratrix could not have compelled the plaintiff to go on. [MAULE, J.-You have elected to go on you have walked deliberately into a scrape.] And *792] we are willing to pay the administratrix all the costs to which she has been put by our election, viz., the costs of pleading to the suggestion. [JERVIS, C. J.-You can only discontinue on payment of all the costs which your opponent would have got if you had gone on and had failed. MAULE, J.—If the issues on the suggestion had been found for the defendant, it would have entitled her to all the costs of the cause.] It is submitted that neither of the statutes entitles the defendant to those costs: the 3 & 4 W. 4, c. 42, s. 2, does not touch the case at all; and the 15 & 16 Vict. c. 76, s. 138, only extends to cases where the action survives.

JERVIS, C. J.—I am of opinion that this rule must be discharged. There is no doubt as to the practice in the cases put, of pleas in abatement and pleas puis darrein continuance; but it has no application to a case of this sort, where the plaintiff, for reasons best known to himself, wishes to discontinue the action. I see nothing to take the case out of the ordinary rule. The 3 & 4 W. 4, c. 42, s. 2, for the first time enabled actions to be brought against executors or administrators in respect of wrongs committed by the testator or intestate within six months before his decease, so as such actions be brought within six calendar months. after such executors or administrators shall have taken upon themselves the administration of the estate of the party. Then comes the Common Law Procedure Act, which provides, that, in case of the death of a sole defendant, where the action survives, the plaintiff may, on suggesting the death, and giving a certain notice, proceed against the personal representative. The object of the act was, to place the personal representative, in the cases provided for, in the same position as if he had been the original defendant upon the record,-to substitute the one for the *other, and so avoid the necessity of commencing a fresh action: *793] and the act (s. 138) provides, that, "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." The only