Court took time to consider whether they should grant a rule, but afterwards, at the close of the same term, refused it: Meanwhile the defendant had died, and judgment was not entered up within two terms of the verdict, but it was entered afterwards on a day not so distant from the end of the second term, as the number of days which the Court had taken, in the first term after the verdict, for consideration: After error brought, the Court allowed the record to be amended, by entering the judgment nunc pro tunc of a day within the second term. But on the other hand, the proviso in the rule applies only, as formerly, to authorise the entry nunc pro tunc in cases where the delay has arisen from the act of the Court (t). upon Where an issue has been tried on an order made a rule under the Interpleader Act (1 & 2 Wm. IV. c. 7, s. 8), it has been doubted, whether the Court can order the proceedings to be entered up other than according to their true date (u). In Jenkins v. Parkinson (x), where a covenant in an agreement for a lease had been broken, and a verdict obtained for 1500l., as damages for the breach, but the plaintiff in the action died before the judgment was perfected, so that the damages were lost at law, Lord Chancellor Brougham, on a bill by the representatives of the plaintiff for specific performance of the agreement, refused a writ of ne exeat regno for the amount. By the C. L. Procedure Act, 1852, s. 140, "if the plaintiff in any action happen to die after an interlocutory judgment, and before a final judgment obtained therein, the said action shall not abate by reason thereof, if such action might be originally prosecuted or maintained by the executor or administrator of such plaintiff; and if the defendant die after such interlocutory judgment, and before final judg (t) Lanman v. Lord Audley, 2 Mees. & W. 535. Vaughan v. Wilson, 4 Bingh. N. C. 116. Freeman v. Tranab, 12 C. B. 406. (u) Lambirth v. Barrington, 2 Bingh. N. C. 149. S. C. 4 Dowl. P. C. 126. (x) 2 M. & K. 5. under the Interpleader Act: no relief in equity by writ of ne exeat regno: Proceedings in case of death after interlocutry and before final judgment. ment therein obtained, the said action shall not abate, if such action might be originally prosecuted or maintained against the executor or administrator of such defendant, and the plaintiff, or if he be dead after such interlocutory judgment, his executors and administrators shall and may have a writ of revivor in the form contained in the Schedule A. to this Act annexed, marked No. 9 (y), or to the like effect, against the defendant, if living after such interlocutory judgment, or if he be dead, then against his executors or administrators, to show cause why damages in such action should not be assessed and recovered by him or them; and if such defendant, his executors or administrators, shall appear at the return of such writ, and not show or allege any matter sufficient to arrest the final judgment, or shall make default, a writ of inquiry of damages shall be thereupon awarded, or the amount, for which final judgment is to be signed, shall be referred to one of the masters, as hereinbefore (s. 94) provided; and upon the return of the writ, or delivery of the order with the amount indorsed thereon to the plaintiff, his executors or administrators, judgment final shall be given for the said plaintiff, his executors or administrators, prosecuting such writ of revivor, against such defendant, his executors or administrators respectively.” (z) (y) This form is as follows: Victoria, by the grace of God, &c., to E. F. of greeting: We command you that, within eight days after the service of this writ upon you, inclusive of the day of such service, you appear in our Court of to show cause why A. B. [or C. D., as executor of the last Will and Testament of the said A. B. deceased,' or as the case may be], should not have execution against you [if against a representative here insert, 'as executor of the last Will and Testament of deceased,' or as the case may be], of a judgment where- (2) This enactment is substituted in lieu of stat. 8 & 9 Wm. III., c. 11, s. 6, by which it is enacted, that "in all actions to be commenced in any Court of Record, if the plaintiff or defendant happen to die, after interlocutory and before final judg It will be observed, that this section, as well as the enactment for which it was substituted (see infra, n. (2)), is expressly confined to cases where the action might have originally been prosecuted or maintained by or against the executors or administrators of the party dying. Accordingly, where the plaintiff in an action for a libel died after interlocutory judgment signed, and writ of inquiry executed, but before the day in Bank, the Court of Common Pleas held, that final judgment could not be entered for the plaintiff (on the statute of Wm. III.) for the damages assessed, the suit having abated by his death (a). If the testator or intestate dies before interlocutory judgment, it is a case not within the statute; and, therefore, it would be irregular to sign interlocutory judgment after, and proceed upon the statute (b). case: When the death of the testator or intestate happens after form of writ of interlocutory judgment, and before the execution of the writ revivor in such of inquiry, the form of the writ of revivor ought to be for the defendant to show cause why the damages should not be assessed and recovered against him (c), and to hear the ment, the action shall not abate by reason thereof, if such action might have been originally prosecuted or maintained by or against the executors or administrators of the party dying; but the plaintiff, or if he be dead after such interlocutory judgment, his executors or administrators, shall and may have a scire facias against the defendant, if living after such interlocutory judgment, or if he died after, then against his executors or administrators, to show cause why damages in such action should not be assessed and recovered by him or them; and if such defendant, his executors, or administrators, shall appear at the return of such writ, and not show or allege any matter sufficient to arrest the final judgment, or being returned warned, or upon two writs of scire facias, it be re- (a) Ireland v. Champneys, 4 (b) Wallop v. Irwin, 1 Wils. 315. (c) Smith v. Harmon, 1 Salk. 315. Tidd. 1118, 9th edition. 2 Saund. 72, q, 6th edition. and judgment. 2. Where the testator died after final judgment: the executor, &c., must re ment to get execution : judgment of the Court thereupon (d). But where the death happens after the writ of inquiry is executed, and before final judgment, the writ of revivor must be to show cause why the damages assessed by the jury should not be adjudged to the executors or administrators of the plaintiff (e). The judgment upon this section must not be entered for the testator or intestate, as upon the former enactments, but for the executor or administrator (ƒ). If 2. When the testator or intestate died after having obtained final judgment. Where the deceased is a sole plaintiff and dies after final judgment and before execution, his executor or administrator may get execution by reviving the judgment against the defendant: but though the death took place within a year after the judgment obtained, the personal vive the judge representative cannot have execution without reviving it (g). any of the executors or administrators are femes covert, their husbands must be made parties to the proceedings to revive (h). Again, the executors or administrators of the plaintiff may have execution by elegit as well as the plaintiff himself; but they cannot sue it out without reviving the judgment, even within a year (i). So they may have a scire facias, by a favorable construction of the statute 32 Hen. VIII. c. 5, in order to obtain a new writ of elegit, if lands have been delivered to their testator in execution on a judgment, and have been evicted before the judgment debt has been wholly levied (k). revival by administrator de bonis non: 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 c. 8. is no party thereto (1). But now by statute 17 Car. II. c. 8, 17 Car. II. s. 2, "Where any judgment after a verdict shall be had, by or in the name of any executor or administrator, in such case an administrator de bonis non may sue forth a scire facias and take execution upon such judgment." In the construction of this statute, it has been holden, that since an administrator de bonis non may, by virtue of the Act, commence an execution, that is, may revive a judgment obtained by an executor or administrator, it is within the equity of the Act that he may perfect an execution already begun by the executor or administrator; for the right now comes to him (m): Therefore, if the sheriff, before the death of the original executor or administrator, has returned that he has seized goods to the value, but that they remain in his hands pro defectu emptorum, and then the executor or administrator dies, the sheriff must sell the goods in convenient time, and bring the money into Court: and upon the administrator de bonis non coming in and showing his letters of administration, he shall take it out (n). But still, if an executor takes proceedings on a judgment or recognizance, and has judgment quod habeat executionem, and dies intestate, the administrator de bonis non must revive the original judgment, and cannot proceed upon the judgment obtained by the executor (o). Where an administrator or executor obtains a decree and dies, the administrator de bonis non may revive this decree within the equity of the statute (p). At the common law, the proper mode of reviving a judgment was by writ of scire facias: And a writ of this kind, when sued out by a personal representative, stated, in (1) Snape v. Norgate, Cro. Car. 167. S. C. Roll. Abr. 890, (T.) pl. 3. Sir W. Jones, 214. (m) Clerk v. Withers, 1 Salk. 323. SC. 2 Lord Raym. 1072. 6 Mod. 290. 11 Mod. 34. Holt, 303, 641. (n) 2 Lord Raym. 1074, 1076. 6 Mod. 300. (0) Treviban v. Lawrence, 2 Ld. Raym. 1049. 2 Saund. 72, s. (p) Owen v. Curzon, 2 Vern. 237, (but see the note in Mr. Raithby's edition :) Huggins v. York Build. Comp., 2 Eq. Cas. Abr. 3. Proceedings to revive judgCommon Law ments under the Procedure Act, |