"9. Where any cause or matter becomes abated, or in the case of any such change of interest as is by this order provided for, the solicitor .for the plaintiff or person having the conduct of the cause or matter, as the case may be, shall certify the fact to the proper officer, who shall cause an entry thereof to be made in the cause-book opposite to the name of such cause or matter. "10. Where any cause or matter shall have been standing for one year in the cause-book marked as ' Abated,' or standing over generally, such cause or matter at the expiration of the year shall be struck out of the cause-book." This order, so far as it relates to the death of a plaintiff or defendant, seems to be in substance a re-enactment of the provisions of the Common Law Procedure Act, 1852. Before that act, if a sole plaintiff or defendant died before verdict or judgment by default, the plaintiff or his executor was obliged to commence a new action against the defendant or his executor, provided the cause of action survived to or against the executor. But by sect. 135 of the Common Law Procedure Act, 1852, it was enacted that the death of a plaintiff or defendant should not cause the action to abate but that it might be continued as provided by that act. And by sect. *137, in case of the death of a sole plaintiff or the sole surviving plaintiff, the legal representative of such plaintiff might, by leave of the court or a judge, enter a suggestion of the death, and that he was the legal representative, and the action thereupon proceeded, and the truth of the suggestion was triable thereat, and the judgment followed the verdict as if the person making such suggestion was originally plaintiff. This section did not apply to personal actions which would not survive to the executor (a). So also that part of the above rule (1), which enacts that there shall be no abatement by reason of the death of either party between the verdict or finding of the issues of fact and the judgment, but that the judgment may, in such case, be entered, notwithstanding the death, takes the place of the provision of section 139 of the Common Law Procedure Act, 1852 (b), which was a re-enactment of the stat. 17 Car. II. c. 8, sect. 1, which related to proceedings at common law, and the 52nd section of 15 & 16 Vict. c. 86, which dealt with the procedure in equity. This portion of the rule extends, as did the old law, to all personal actions, notwithstanding that the cause of action could not have sur(a) Flinn v. Perkins, 32 L. J. Q. B. 10. (b) Repealed by stat. 46 & 47 Vict. c. 49, sect. 3. vived to the representative of the deceased, as for a libel, negligence, &c. Under the procedure in force before this rule, in the case of the death of a party between verdict and judgment, judgment might be entered as if the party were still living, but there must have been a revival by the executor to get execution (c). The statute of 17 Car. II. referred to above was held to make a judgment entered up under it equivalent to a judgment entered up during the lifetime of the deceased party (d). It did not apply to a non-suit (e), but, as it has *already been shown, it did apply to actions which do not survive to the executor (ƒ). The death of either party before the assizes (g) was not remedied by the act, but his death after the assizes began (h), or after the first day of the sittings at Nisi Prius though before the trial (i), was remedied, for the assizes are but one day in law. In the case of the death of a sole plaintiff or a sole surviving plaintiff it is necessary for the personal representative of the plaintiff to get an order for leave to continue the action (k), and if he does not do so, so that there is no person before the court in whom the action is vested, the action if called on for trial will be struck out (1). Or the defendant (or the person against whom the cause or matter may be continued), may apply by summons to compel the plaintiff (or person entitled to proceed) to proceed within such time as may be ordered, and in default of such proceeding, judgment may be entered for the defendant (m), or it would seem the action may be dismissed for want of prosecution (n); but it would seem, in such case, that the defendant must, before applying to dismiss, either get an order appointing some person to represent the estate of the deceased, under Order XVI., rule 46, or, where there is a personal representative, give notice to him. Or the defendant may get an order staying the action (o). An executor obtaining an order to continue an action even after judgment becomes liable for costs ab initio in the same manner as if (c) A writ of revivor is no longer necessary, but leave must be obtained under Order XLII., rule 23. (d) Colebeck v. Peck, 2 Ld. Raym. 1280. Burnett v. Holden, 1 Lev. 277. (e) Dowbiggin v. Harrison, 10 B. & C. 480. (f) Palmer v. Cohen, 2 B. & Ad. 966. Kramer v. Waymark, L. R., 1 Exch. 241. (g) Taylor v. Harris, 3 B. & P. 549. (h) Anon. 1 Salk. 8. (i) Jacobs v. Miniconi, 7 T. R. 31. (k) Re Atkins' Estate, 1 C. D. 82. (n) Wright v. Swindon Ry. Co., 4 C. D. 164. Wingrove v. Thompson, 11 C. D. 419. (0) Warder v. Saunders, 10 Q. B. D. 114. the action had been commenced by him (p). If the plaintiff dies between verdict and judgment, judgment may be enter. d notwithstanding the death, but where any *change has taken place, by death, or otherwise, in the parties entitled to execution, the party alleging himself to be entitled to execution may apply to the court or a judge for leave to issue execution accordingly, and such court or a judge, if satisfied that the party so applying is entitled to issue execution, may make an order to that effect, or may order an issue to be tried (9). Where, after judgment, the plaintiff died, having made a will and appointed executors, an application to the court ex parte on behalf of the executors for leave to issue execution was granted on production of the probate, and unless the executor has obtained such leave he is not entitled to issue a bankruptcy notice (r). Formerly the mode in which an executor got execution, where a sole plaintiff died after final judgment and before execution, was by reviving the judgment. It should seem that no motion for a new trial can be made where the plaintiff has died since the trial, until probate or administration to the deceased has been obtained (s). The power (which formerly existed) of the court or judge to order judgment to be entered nunc pro tunc is confirmed by Order XLI. rule 3 of the Rules of the Supreme Court, 1883, which now govern the procedure, whereby it is enacted that where any judgment is pronounced by the court or a judge in court, the entry of the judgment shall be dated as of the day on which such judgment is pronounced, unless the court or judge shall otherwise order, and the judgment shall take effect from that date, provided that by special leave of the court or a judge, a judgment may be ante-dated or post-dated. New trial cannot be applied for betion granted. Entry of judg fore administra ment nunc pro tunc. Revival by admin non. 17 Car. II. c. 8. At common law an administrator de bonis non could not revive a judgment obtained by the original executor or administrator; for he comes paramount the judgment, and is no istrator de bonis party thereto (t). But by statute 17 Car. II. c. 8, s. 2 (now repealed), the administrator de bonis non might revive a judgment or decree obtained by an executor or administrator *or perfect an execution already begun by the executor or administrator. Such cases seem now to fall within the above mentioned order. (p) Boynton v. Boynton, 4 App. Cas. 733. (9) Ord. XLII., r. 23. (r) Re Woodall, 13 Q. B. D. 479. (8) Lloyd v. Ogleby, 5 C. B. N. S. 667. (t) Snape v. Norgate, Cro. Car. 167. [*779] [*780] If the plaintiff die after a fieri facias sued out, the writ may, notwithstanding, be executed, and his executor or adminWrit of fi. fa. issued in the life of istrator shall have the money; or if there be no execujudgment creditor may be executed tor, and administration be not as yet granted, the money after his death. shall be brought into court, and there deposited until some person appear to claim it as representative of the deceased (u). Formerly, where one of several plaintiffs in a personal action died after judgment and before execution, execution could be and before execu- had by the survivors within a year after payment, without reviving the judgment. But the execution in such case had to be taken out in the joint names of all the plaintiffs, otherwise it would not have been warranted by the judgment. After judgment tion. This case would now seem to be governed by Order XLII. rule 23, since there has been a change in the parties entitled to execution. And where judgment has been given against two or more defendants, if one or some of such defendants dies within six years after judgment and before execution, execution may still be issued against the estates of the survivors or survivor without obtaining any order for that purpose; but if it is desired to enforce the judgment against the estate of the deceased person or persons, an order under Order XLII. r. 23, Rules of the Supreme Court, 1883, is necessary (x). An inquisition of felo de se, before the coroner super visum corporis (y), may be removed by the executors or administralies for executors, *tors of the deceased into the Queen's Bench Division by certiorari, and there quashed (z); or the inquisition may, after such removal, be traversed by the executors or administrators (a). Where certiorari (u) Clerk v. Withers, 2 Lord Raym. 1072. 1 Chit. Archb. 881, 14th edit. A writ of sequestration, however, is suspended by the death of the person at whose instance it issued, until it is revived. Wharram v. Broughton, 1 Ves. Sen. 183. (x) Davis v. Andrews, W. N. (84), 94. D. C. P., 6th edit., p. 883. (y) The coroner has no jurisdiction if (a) 1 Saund. 363, note to Toomes v. Etherington, S. P. 6 B. & C. 627, by Lord Tenterden. The modern practice relating to applications by certiorari for the removal of inquisitions for the the body cannot be found, as he can only hold an inquest super visum corporis see the Coroners Act, 1887, 50 & 51 Vict. c. 71, sect. 4. (2) In former times inquisitions were quashed for a variety of technical defects usually of a trivial character, but modern legislation has rendered such objections immaterial. See 14 & 15 Vict. c. 100, §§ 24, 25 and 30, and 24 & purpose of quashing them, the removal of inquisitions for trial, and the traverse of inquisitions is dealt with in Messrs. Short & Mellor's Crown Practice, pp. 106-113. Yet, if the When an execu tor may enter up judgment on a warrant of attor ney given to de ceased. But judgment Generally speaking, the death of the plaintiff countermands a warrant of attorney to confess judgment (b). warrant of attorney be to enter up judgment at the suit of A., his executors or administrators, it seems that on the death of A., the court will give his executors or administrators leave to enter up judgment thereon (c). cannot be entered up after the death of the plaintiff, on a warrant of attorney empowering him to enter up judgment to secure the payment of a sum of money to the plaintiff, his executors and administrators (d). *However, formerly, if the plaintiff died in vacation, within a year after the giving of the warrant of attorney, judgment might be entered up of course, at any time after, in that vacation (e); and it would have been a good judgment at common law, as of the preceding term, though it was not so upon the Statute of Frauds, in respect of purchasers, but from the signing (f). By rule 56, Practice Rules H. T., 1853, it was provided that all judgments should be entered of record of the day of the month and year, whether in term or vacation, when signed, and should not have relation to any other day. Now, however, by Rules of the Supreme Court, 1883, Order XLI. r. 4, it is provided that in all cases where the judgment has not been pronounced by a court or a judge the entry of judgment shall be dated as of the day on which the requisite documents are left with the proper officer for the purpose of entry, and the judgment shall take effect from that date. 25 Vict. c. 100, § 6. And the new Coroners Act, 1887, 50 & 51 Vict. c. 71, $20, enacts that "if in the opinion of the Court having cognizance of the case an inquisition finds sufficiently the matters required to be found thereby, and where it charges a person with murder or manslaughter sufficiently designates that person and the offense charged, the inquisition shall not be quashed for any defects, and the Court may order the proper officer of the Court to amend any defect in the inquisition and any variance occurring between the inquisition and the evidence offered in proof thereof, if the Court are of opinion that such defect or variance is not material to the merits of the case, and that the defendant or person travesing the inquisition cannot be prejudiced by the amendment in his defense, or traverse on the merits." (b) Co. Lit. 52, b. Tidd's Pract. 551, 9th edit. If the warrant be given to two or more, and one of them die, the survivor may obtain leave to enter up judgment at his suit: Fendall v. May, 2 M. & S. 76. 2 Chit. Arch. 13th edit. pp. 768-769. (c) Coles v. Haden, Barnes, 44. As to the necessary affidavit of execution in such a case, see Baldwin v. Thompson, 2 Dowl. 591. (d) Henshall v. Matthew, 7 Bingh. Foster . Claggett, 6 Dowl. 337. (e) Tidd's Pract. 551, 9th edit. (f) Tidd's Pract. 551, 9th edit. |