CHAPTER THE FOURTH. WHAT SUITS COMMENCED BY THE TESTATOR OR INTESTATE MAY Suits in equity: WITH respect to the continuance by the executor or order of revivor. Suits at law. 1. Where testator dies be administrator of suits in equity commenced by the deceased: Wherever a suit abates by death, and the interest of the person whose death has caused the abatement is transmitted to that representative which the law gives or ascertains, as an heir-at-law, executor or administrator, so that the title cannot be disputed, at least in the Court of Chancery, but the person in whom the title is vested is alone to be ascertained, the suit may be continued by an Order to revive merely (a). As to the continuance of suits at law commenced by the deceased, it will be convenient to investigate the subject, 1st, In cases where the testator or intestate died before final judgment: 2dly, In cases where he died after final judgment. 1. Where the testator or intestate died before final judg death of a sole plaintiff or fore final judgment. ment: At common law the By (a) Mitf. Pl. 69, 4th edit. Since such legal representative do revive the suit within a limited time, or that the bill be dismissed." Daniell's Pract. 785, 2d edit. Where, instead of reviving the suit, the executor files an original bill in respect of the same matters, the Court will stay proceedings in the latter suit until the costs of the former be paid: Altree v. Hordern, 5 Beav. 623. defendant, at any time before final judgment, would have abated the suit (b). Procedure Act, But now, by stat. 15 & 16 Vict. c. 76 (Common Law Pro- Common Law cedure Act, 1852), s. 135, the death of a plaintiff or defendant 1852: shall not cause the action to abate, but it may be continued as thereinafter mentioned. And by s. 137, "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, as if such person were originally the plaintiff (c)." By sect. 139, "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 appears to be merely a re-enactment, (confined, it should seem, by the effect of s. 227, to actions personal brought by writ of summons,) of the stat. 17 Car. II. c. 8, s. 1, by which it is enacted, that "in all actions, personal, real or mixed, 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." It has been holden in the construction of the latter Act, that the death of either party before the assizes is not remedied; but if the party die after (b) 2 Saund. 72, n, 6th edition, note to Underhill v. Devereux. (c) By stat. 17 & 18 Vict., c. 125 (C. L. Procedure Act, 1854), s. 92, the defendant may apply by summons to compel the executor or administrator to proceed according to the provisions of the Act of 1852 within such time as a judge shall order; and in default of such proceed- proceeding in case of death of sole, or sole surviving plaintiff. Death between judgment: verdict and the assizes begin, though the trial be after his death, it is within the remedy of this statute; for the assizes are bu one day in law, and this is a remedial Act, and shall be construed favourably (d). And in like manner, and for the like reason, it was adjudged, that if the defendant die after the first day of the sittings at nisi prius, and before the trial, it is remedied (e). But where the defendant died on the night before the trial of a cause at the sittings in term, a verdict obtained in such cause, and the judgment entered up thereon, was set aside upon application to the Court (f). The judgment upon this statute is entered by or against the party as if he were living (g); and it should be entered, or at least signed, within two terms after the verdict; for signing the judgment is an entering of it within the statute (h). But there can be no execution without a revival of the judgment (i). And as the judgment is general, as if the party were living at the time it was entered, so the proceedings to revive must follow the judgment, and recite it as if it had been entered in his lifetime; or in other words, they must be in the same form as if he had died after final judgment (k). (d) Anon. 1 Salk. 8. 7 T. R. 32, note (a). (e) Jacobs v. Miniconi, 7 T. R. 31. (f) Taylor v. Harris, 3 Bos. & Pull. 549. However, all the causes tried by adjournment from the first day of a sittings in term are to be regarded as tried on that day: Cheetham v. Sturtevant, 12 M. & W. 515. Hence it seems to follow that if the party dies after the sittings begin, and the cause is tried during those sittings, though after his death, the case is within the remedy of the statute. (g) Weston v. James, 1 Salk. 42. 2 Saund. 72, n. Saunders v. M'Gouran, 12 M. & W. 221. (h) Helie v. Baker, 1 Sid. 385. Webb v. Spurrell, Barnes, 261. (i) Earl v. Brown, 1 Wils, 302. But where the plaintiff's attornies gave the defendant's attornies their own undertaking as security for costs; and the defendant obtained a verdict and died, and judgment was entered up in his name within two terms; it was held, that the attorney for such deceased party, having a claim against his estate in respect of the costs, might enforce the security, to satisfy such claims, without any scire facias having been sued out by the personal representatives: Chauvel e. Chimelli, 4 B. & Adol. 590. S. C. 1 Nev. & M. 731. (k) Colebeck v. Peck, 2 Lord Raym. 1280. See also Burnet c. Holden, 1 Lev. 277. This statute is not confined to such actions, as would have survived to the personal representative: Therefore an executor may enter up judgment on a verdict obtained by his testator in an action for libel (1). this statute applies to actions which do not survive to the executor: of non-suit. Where a cause was tried in December, and the plaintiff but not to cases nonsuited, and the defendant died on the 5th of January following, and afterwards judgment was signed, and a scire facias issued by the administrator to revive it; the scire facias was set aside as irregular, on the ground that the statute did not apply to cases of nonsuit (m). Where the verdict is given at the trial for the one party, and leave reserved to the other to move to set that verdict aside and to enter a verdict for himself, and he dies before such a motion can be made, his executors may move in his name, and the rule may, if the Court should think it proper, be made absolute; the effect of which will be as if that verdict had been found at the trial; and then judgment may be entered under the statute now under consideration (n). Death of party after leave re served to enter a verdict. Entry of judg ment nunc pro tune: If either party die after a special verdict, or special case, and pending the time taken for argument or advising thereon, or after a motion in arrest of judgment or for a new trial, or after a demurrer set down for argument, judgment may be entered, at common law, after his death, as of at common law : the term in which the postea was returnable, or judgment would otherwise have been given, nunc pro tune; that the delay arising from the act of the Court, may not turn to the (1) Palmer v. Cohen, 2 B. & Adol. 966. (m) Dowbiggin v. Harrison, 10 B. & C. 480. (n) Freeman v. Rosher, 13 Q. B. 780. So in Griffith v. Williams, 1 Crompt. & Jerv. 47, the plaintiff in an action for a breach of promise to marry, having obtained a verdict, died after a rule for a new trial was obtained, and before it was discussed; in showing cause, it was urged that the setting aside the verdict would defeat justice, as VOL. I. no new trial could be had, without 3 F under Reg. Gen. H. T. 1853. prejudice of the party (o). So a judgment may be entered nunc pro tunc, without reference to the statute of Car. II where a verdict has been taken subject to an award, and the award is made in the lifetime of both parties, but the sue cessful party dies pending a rule to set aside the award (pi But judgment cannot, at common law, in any case be entered nunc pro tunc, unless the delay be attributable to the act of the Court (q). By rule 56, Practice Rules H. T. 1853, "all judgments, whether interlocutory or final, shall be entered of record of the day of the month and year, whether in term or vacation, when signed, and shall not have relation to any other day: But that it shall be competent for the Court or a judge to order a judgment to be entered nunc pro tunc." This rule, (which is substantially the same as Reg. Gen. 4 W. 4, No. 3), does not appear to have made any alteration in the common law practice as above stated: Therefore, since the rule, as before, judgment may be entered up nunc pro tunc, where the delay has arisen from the act of the Court and not from the act of the party: Thus in Blewett v. Tregoning (r), where the plaintiff had obtained a verdict, but the defendant had obtained a rule nisi for a new trial, which after the lapse of a year had been discharged, and in the meantime the defendant had died, the Court ordered judg ment to be entered nunc pro tunc, though more than two terms had elapsed since the discharge of the rule, it appearing that the delay was occasioned by the taxation of the costs, and no fault being specifically imputed to the plaintiff. So in Evans v. Rees (s), the defendant in replevin had obtained a verdict on the Spring Circuit; and in Easter term following, the plaintiff moved the Court for a rule to show cause why the verdict should not be set aside and a new trial had: The (0) Tidd's Pract. 932, 9th edit. (p) Bridges v. Smyth, 8 Bingh. (2) Copley v. Day, 4 Taunt. 702. Lawrence v. Hodgson, 1 Younge & Jerv. 368. Freeman v. Tranah, 12 C. B. 406. (r) 4 A. & E. 1002. |