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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 tri. able 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 (6), 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 o. Perkins, 32 L. J. Q. B. 10. (6) Repealed by stat. 46 & 47 Vict. c.

49, sect. 3.

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vived to the representative of the deceased, as for a libel, negli. gence, &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 partý (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 (f). The death of either party before the assizes (9) 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 defend. ant 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

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(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 o. 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. (9) 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.
(1) Eldridge v. Burgess, 7 C. D. 411.
(m) Ord. XVII., r. 8.

(n) Wright v. Swindon Ry. Co., 4
C. D. 164. Wingrove v. Thompson, 11
C. D. 419.

(6) Warder v. Saunders, 10 Q. B. D. 114.

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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 (2). 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 New trial cannot or adıninistration to the deceased has been obtained (s). berapplied for be

The power (which formerly existed) of the court or tion grant judge to order judgment to be entered nunc pro tunc is Entry of judgconfirmed by Order XLI. rule 3 of the Rules of the tunc. 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.

At common law an administrator de bonis non could not revive a judgment obtained by the original executor or adminis

Revival by admintrator ; for he comes paramount the judgment, and is no 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.

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istrator de bonis non.

17 Car. II. c. 8.

(p) Boynton o. Boynton, 4 App. Cas. 733.

() Ord. XLII., r. 23.
(r) Re Woodall, 13 Q. B. D. 479.

(3) Lloyd v. Ogleby, 5 C. B. N. S. 667.

(1) Snape o. Norgate, Cro. Car. 167.

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After

tion,

If the plaintiff die after a fieri facias sued out, the writ may, not

withstanding, be executed, and bis executor or adminWrit of fi. fa. isgued 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 judgment and before execu- had by the survivors within a year after payment, with

out 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.

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 corpoWhere certiorari

ris (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).

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tor may enter up

& warrant of attorney given to deceased.

Generally speaking, the death of the plaintiff countermands a warrant of attorney to confess judgment (b). Yet, if the When an execawarrant of attorney be to enter up judgment at the suit judgment on 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). But judgment 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 (a).

*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 bave 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, S 6. And the new Cor- cannot be prejudiced by the amend.
oners Act, 1887, 50 & 51 Vict. c. 71, ment in his defense, or traverse on the
$ 20, enacts that “if in the opinion of merits.”
the Court having cognizance of the case (6) Co. Lit. 52, b. Tidd's Pract. 551,
an inquisition finds sufficiently the mat. 9th edit. If the warrant be given to
ters required to be found thereby, and two or more, and one of them die, the
where it charges a person with murder survivor may obtain leave to enter up
or manslaughter sufficiently designates judgment at his suit: Fendall v. May,
that person and the offense charged, the 2 M. & S. 76. 2 Chit. Arch. 13th edit.
inquisition shall not be quashed for any

pp. 768-769.
defects, and the Court may order the (©) Coles v. Haden, Barnes, 44. As
proper officer of the Court to amend any to the necessary affidavit of execution
defect in the inquisition and any vari- in such a case, see Baldwin 0. Thomp-
ance occurring between the inquisition son, 2 Dowl. 591.
and the evidence offered in proof thereof, (d) Henshall v. Matthew, 7 Bingh.
if the Court are of opinion that such de- 337. Foster v. Claggett, 6 Dowl.
fect or variance is not material to the 524.
merits of the case, and that the defend- (e) Tidd's Pract. 551, 9th edit.
apt or person travesing the inquisition (f) Tidd's Pract. 551, 9th edit.

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