deceased (p): But Lord Hale, in his Pleas of the Crown (q), is of a different opinion, conceiving it to be a great hardship that an inquisition, which is no more than an inquest of office, taken perhaps behind the backs of the executors or administrators of the deceased, should be conclusive; and he cites Barclay's Case in K. B. 1650, and a record in the Exchequer, East. 45 Edw. III., where a creditor of one Page, who was found a felo de se, by the coroner's inquisition, traversed the finding, and the jury found that he was not felo de se : therefore Lord Hale concludes, that the inquisition is as much traversable as a presentment before justices of Oyer and Terminer, or of the peace, which Lord Coke admits is traversable And it seems now fully settled, that such an inquisition may be removed into the K. B. by certiorari, and traversed by the executors or administrators of the deceased (r). But no traverse can be taken to make a man felo de se; as if the inquisition find that the party was non compos mentis at the time he did the act, neither the king nor his grantee can traverse it (s). Yet if it appear upon affidavit that such a finding was obtained by any indirect proceedings of the coroner, the Court would grant a melius inquirendum before special commissioners, who shall not proceed super visum corporis, but on the testimony of witnesses (t). And though the coroner return to the K. B. the inquisition finding a felo de se non compos, yet he is not obliged to return the depositions, unless there be something depending before the Court to make it necessary (u).

If it be found by the coroner's inquisition, in case of the death of a person who is not felo de se, that the person who

(p) 3 Inst. 55.

(q) P. 416, 417.

(r) Anon. 1 Ventr. 239. Ibid. 278. R. v. Aldenham, 2 Lev. 152. S. C. 1 Freem, 419. 3 Keb. 564-6, 604. Reg. v. Clerk, 7 Mod. 16. Ripley's case, Sir T. Jones, 198. S. C. 2 Show. 199. Skinn. 45. 1 Saund. 363, n. (1). Ireton's case,

1 Freem. 443. R. v. Parker, 2 Lev. 141.

(8) Anon. 1 Vent. 239. Fost. C. L. 266. 1 Saund. 363.

(t) R. v. Hethersal, 3 Mod. 80. 2 Hawk. P. C. 54. Rex v. Bunny, 1 Salk. 190.

(u) Case of the Coroner of Westminster, 2 Stra. 1073.

When an execu

committed the offence fled for it, all the above-mentioned authorities hold this finding conclusive and not traversable. And yet upon principle it should seem, that one case is as much traversable as the other; and there appears to be no better foundation for the distinction between a fugam fecit, as it is called, found by the coroner, and the case of a felo de se, than that which is mentioned in 8 Edw. IV. 4, a. and adopted by Lord Hale, 1 H. H. P. C., 417, “quia c'est un ancient positive ley del corone" (x).

Generally speaking, the death of the plaintiff countermands up judgment on a warrant of attorney to confess judgment (y). Yet, if the

tor may enter

a warrant of

attorney given to deceased.

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 Courts will give his executors or administrators leave to enter up judgment thereon (z). 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 (b); 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 (c). But now by rule 56, Practice Rules his suit: Fendall v. May, 2 M. & S. 76. 2 Chit. Arch. 895, 9th edit.

(x) 1 Saund. 363, a. note. Another reason is given by Lord Hale in 1 Freem. 419, viz., that all the parties who were present at the death of the person on whose body the inquisition is taken, are bound to attend the inquest; and their not appearing there is a flying in law, and cannot be contradicted.

(y) 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

(2) Coles v. Haden, Barnes, 44. As to the necessary affidavit of execution in such a case, see Baldwin v. Thompson, 2 Dowl. 591.

(a) Henshallv. Matthew, 7 Bingh. 337. S. C. 5 M. & P. 157. 1 Dowl. 217, S. P. Manvill v. Manvill, 1 Dowl. 544. Foster v. Claggett, 6 Dowl. 524.

(b) Tidd's Pract. 551, 9th edit. (c) Ibid.

H. T., 1853, all judgments 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 (d).

When an execeed on an

cutor may pro

The authority of an arbitrator is determined by the death of either party before award made; even where the submission is by order of nisi prius, and a verdict is taken for the arbitration. plaintiff, subject to the award (e). But it is now usual to insert in the order of reference a clause providing, that in the case of the death of either of the parties before the making of the award, it shall be delivered to their personal representatives (f). And where such a clause is inserted in the order of nisi prius or rule of Court, or deed or other instrument under which the submission to arbitration is effected, an award made after the death of either party appears to be valid and available for or against the executors or adminis trators (g).

If either party dies after the award is made under an order of nisi prius, where a verdict has been taken, subject to the award, judgment may, it seems, be entered within two terms after the verdict, by the statute 17 Car. II. c. 8, s. 1 (h): but if it be not entered up within that time, it has been considered that the Court have no authority to permit it to be entered.

(d) See ante, p. 802.

(e) Potts v. Ward, 1 Marsh. 366. Toussaint v. Hartop, 7 Taunt. 571. S. C. 1 B. Moore, 287. Cooper v. Johnson, 2 B. & A. 394. Rhodes v. Haigh, 2 Barn. and Cress. 345. S. C. 3 D. & R. 610. It is extremely questionable, as a general proposition of law, whether the death of one of the parties on one side avoids an award: Per Tindal, C. J., In re Hare, 6 Bingh. N. C. 163. S. C. 8 Scott, 367.

(f) See the observations of Abbott, C. J., in Cooper v. Johnson, 2 Barn. & Ald. 395.

(g) Tyler v. Jones, 3 B. & C. 144. S. C. 4 D. & R. 740. Dowse v. Coxe, 3 Bingh. 20. S. C. 10 Moore, 272. S. C. (in error) 6 B. & C. 255. 9 D. & R. 404. Clarke v. Crofts, 4 Bingh. 143. 12 Moore, 349. Macdougall v. Robertson, 2 Y. & Jerv. 11. S. C. 4 Bingh. 435. 1 M. & P. 147. Wrightson v. Bywater, 3 M. & W. 199. Prior v. Hembrow, 8 M. & W. 873. But it cannot be enforced by attachment: Newton v. Walker, Willes, 315. 3 B. & C. 146.

(h) See ante, p. 800. Tidd. 823, 9th edit.

The authority

in a cause is

determined by

up afterwards, nunc pro tunc (i): unless the delay be attri butable to the act of the Court (k), as where a verdict is taken subject to an award, and the award is made in the lifetime of the party, who dies pending a rule to set aside the award (1) or where a verdict is taken, in the lifetime of the party, subject to an award, and the arbitrator does not make an award until after two terms from the verdict, and the party has died in the meantime (m).

of

In Rogers v. Stanton (n), where an award had been made, under a Judge's order of reference, in the lifetime of the defendant, awarding that the plaintiff should pay to the defendant, his executors or administrators, a sum specified, and before any judgment was entered on the award, the defendant died; it was held by the Court of Common Pleas, that his executor, without any scire facias, or process revivor, might enforce the award by attachment against the plaintiff. But the authority of this case may perhaps doubted: for if the suit had abated, by reason of the death of a party before verdict or interlocutory judgment, there is great difficulty in maintaining the proposition that the Court could enforce a rule of Court made in the cause (0). The proper remedy for the executor in such a case was, it should seem, by action.

be

It may here be mentioned that the authority of an attorney of an attorney in a cause is determined by the death of his client: consequently, if, after a verdict for the plaintiff, and pending a rule for a new trial, the plaintiff dies, no cause can be shown against the rule until there is a personal representative (p):

the death of his

client.

(i) Copley v. Day, 4 Taunt. 702. Lawrence v. Hodgson, 1 Younge & Jerv. 368.

(k) Ante, p. 801, 802.

(1) Bridges v. Smyth, 8 Bingh. 29. S. C. 1 M. & Sc. 39. See ante,

p. 802.

(m) Miller v. Spurrs, 2 M. & Sc. 730.

(n) 7 Taunt. 575, note.

(0) See Maffey v. Godwyn, 1 Nev. & M. 101. 1 Dowl. 538, and ante, p. 775, note (v), ad finem. (p) Shoman v. Allen, 1 Man. & Gr. 96, note (c). But where after a verdict for the defendant, he died, and then the plaintiff obtained a rule for a new trial calling on the "legal representatives of the defendant or their attorneys," to

Cause cannot be shown on behalf of the attorney who claims a lien on the verdict for his costs (q). So where money is paid into Court by a defendant who dies before verdict or interlocutory judgment, whereby the suit abates, the money can be paid out of Court, only to the personal representative of the defendant; and an application on the part of his attorney will not be entertained (r).

show cause, and it was served on the latter; it was held that cause might be shown by counsel instructed by the attorneys acting for the executors named in the Will, though they had not proved it; and the Court distinguished Shoman v. Allen, on the ground that in that

case there was no person who could be served with the rule; in the present case there was: Thomas v. Dunn, 1 C. B. 139.

(9) Shoman v. Allen, 1 M. & Gr. 96, n. (c).

(r) Palmer v. Reiffenstein, 1 Mann, & Gr. 94.

3 G

VOL. I.