176 are several Arrangement of Chapter. [BK. II. where there execution, there the doctrine of survivorship applies, and the surplaintiffs or vivors become chargeable to, or benefited by the execution(ƒ); and by statutory enactment (g) the writ or action is not abated by such death, but the death may be suggested on the record. In the latter case, therefore, a writ of scire facias is not necessary. defendants, and one dies. Arrangement of the subject of In treating, however, of the necessity and application of the writ of scire facias on the death of a party to an action, it will be adthe chapter. visable to consider each branch of the subject separately. It is proposed, therefore, to consider first, the case, where one of several plaintiffs or defendants has died pending the suit and secondly, where a sole plaintiff or defendant has died pending the suit. The latter case may, for convenience, be divided—first, into those cases where the plaintiff or defendant has died before final judgment; and, secondly, where the plaintiff or defendant has died after final judgment. Where one of several defendants has died pending a suit. And first, of those cases where one of several plaintiffs or deplaintiffs or fendants has died pending the suit. Formerly, at common law, in all actions where there were two or more plaintiffs or defendants, the death of one of them, pending the suit, before final judgment, was an abatement of the action (h); although the doctrine of survivorship applied to the cause of action (i). But now, by the stat. 8 & 9 Will. III. c. 11. s. 7, it is enacted, "that if there be two or more plaintiffs or defendants, and one or more of them should die, if the cause of such action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be thereby abated; but or against the executor or administra- (f)" It is not necessary to issue a (g) 8 & 9 Will. IV. c. 11, s. 7; and see Rolt v. The Mayor of Gravesend, 7 C. B. 777. (h) 2 V. Wms. Saund. 72 k, n.; Leigh and another v. Bargany, Cro. Jac. 19; Anon. Cro. Car. 509; and to the same effect see The King v. Sir John Dryden and others, Cro. Car. 574; Capel v. Saltonstall, 3 Mod. 249; Stra. 1063; and see Com. Dig. H, 33 & 35, tit. Abatement. (i) As in personal actions, Co. Litt. 198. a. "Where damages are to be recovered for a wrong done to tenants in common or parceners in a personal action, and one of them die, the survivor of them shall have the action;" Young v. Woolaston, Hardr. 113; Lush's Prac. 53, 145; V. Wms. Saund. 72h, n.; Hill v. Tempest and another, Cro. Eliz. 145; Bennion v. Watson and another, Cro. Eliz. 625; Rigley v. Lee and Wife, Cro. Jac. 356; Griffin v. Lawrence, Moore, 469. CH. V.] Not necessary in Personal Action. such death being suggested on the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs, against the surviving defendant or defendants." If the death should happen before declaration, it is usually suggested at the commencement of ) it (k). 177 If the death happen after declaration, and before issue joined, it should be suggested in making up the issue, but otherwise it is not necessary to suggest it till the plea roll be made up (1). If the death happen before interlocutory judgment, the plaintiff may suggest the death of his co-plaintiff on the roll (m). The execution in such case should be taken out in the joint names of all the plaintiffs or defendants; otherwise, it will not be warranted by the judgment (n). Although the execution on a joint judgment must be joint, yet it may be levied upon one only, and he may have contribution against the others (o); but it should be executed against the survivor or survivors only (p). Where one of Scire facias several plaintiffs or defendants in a personal action dies after one of judgment, and before execution, execution may be had by or plaintiffs or against the survivor or survivors, within a year after the judg- not necesment, without issuing a scire facias (q). Thus where the plaintiff sued two defendants, against one of whom he proceeded to outlawry, and the other died after interlocutory, and before final judgment, it was held that the plaintiff could not proceed on the 6th sect. of this statute (r), against the (*) 2 Tidd's Prac. 8th ed. 1170. (1) 2 V. Wms. Saund. 72 k; Far v. Dean, 1 Burr. 362. Ejectment against two; one died after issue joined, but before trial; the death must be suggested on the roll; Barnes, 469; 2 Tidd's Prac. 8th ed. 782, 1170. (m) Newnham v. Law, 5 T. R. 577; where one of two plaintiff's died before interlocutory judgment, but the suit went on to execution in the name of both. After this, and after a motion to set aside the proceedings for this irregularity, the Court permitted the plaintiff to suggest the death of the other before interlocutory judgment on the roll, and to amend the ca. sa. without paying costs, Lord Kenyon, C. J., saying, "The objection should not have been taken by the defendant at all; the plaintiff might have made the suggestion as a matter of course." (0) 2 V. Wms. Saund. 72 1, n. to (p) 2 Chit. Arch. Prac. 8th ed. (q) 2 Tidd's Prac. 8th ed. 1171; 1 (r) See post, p. 186. N on death of several defendants sary in a personal action. 178 The doc trine of sur- therefore such cases. Survivorship does not apply to Real Estate. [BK. II. executors of the deceased; for, notwithstanding the outlawry, the action remained joint, and survived against the other defendant (s). There being no new person introduced on the record in these cases, the rule laid down in Penoyer v. Brace (t), does not apply ; and a scire facias is not required, to revive or continue the judgment (u). But although the judgment survives, as to the personalty in these cases, yet it does not do so as to the real estate; for at common law, the plaintiff might take the goods of the survivor in Scire facias execution by a fi. fa. ; but the plaintiff, under the Statute of Westnecessary in minster the Second, must sue out an elegit against the lands of the survivor, and also of the heir and terretenants of the deceased, and must sue out a scire facias against the survivor and the heir and terretenants of the deceased; for it seems that where the lands of several are charged with a debt, it shall not lie wholly upon the survivor; as if a recognizance be acknowledged by several, the lands of them all are thereby become chargeable, and execution must be equally made, and if one die, the creditor must bring a scire facias against the heir and terretenants, and also against the survivors, for they being all in æquali jure, the charge does not survive (x); but it is otherwise, where the lands are not bound by judgment; as if two entered into a bond, and one die before judgment, the survivor shall be charged alone (y). So if a plaintiff after judgment had against two, one having afterwards died, will take out execution upon the real lien, the charge must be equally against both, and the scire facias against both. But it is said, that if he bring scire facias against both, and have judgment upon it, he may have a fi. fa. against the survivor only, or an elegit against both (2). If the plaintiff, therefore, wish to sue out an elegit against the (s) Fort v. Oliver, 1 M. & Sel. 242. (u) 2 Tidd's Prac. 8th ed. 1171; 2 (x) Sir William Herbert's case, 3 Rep. 14, and see cases cited in argu ment, in Hunter v. Hunt, 1 C. B. 301. (y) Lampton v. Collingwood, 4 Mod. 315. (z) 2 V. Wms. Saund. 50 a, n. 4, to Trethewy v. Ackland; Smarte v. Edsun, 1 Lev. 30; S. C. Sir T. Raym. 26; see further for this distinction between a real and personal execution, that a personal execution survives, but a real execution does not, Sir William Herbert's case, 3 Rep. 14; Panton v. Hall, Carth. 105; Penoyer v. Brace, 1 Salk. 320. CH. V.] Sci. Fa. against Survivor and Heir and Terretenants. 179 lands of a deceased defendant, as well as against the survivor, he Seire facias against surmay have a scire facias against such survivor, and the heir and terre- vivor and tenants of the deceased, to have execution against the lands terretenand goods of the former, and the lands of the latter (a). The body of the heir is protected from execution, and execution can only issue against the lands which descend to him; for it would be most unreasonable to subject the heir to the payment of his ancestor's debts, any further than to the value of the assets descended (b). So, at common law, in all real actions, a scire facias lay; and, consequently, the heir might by such a writ revive and enforce the execution of a judgment obtained by his ancestor (c). Previous to the 1 & 2 Vict. c. 110, where a plaintiff, or executor, or administrator of a deceased plaintiff had revived a judgment by scire facias against the heir and terretenants, execution could have only been had of a moiety of the lands of the defendant, in the hands of the heir or terretenants by elegit, in the same manner as if the defendant were living (d); although the heir had pleaded a false plea (e), which in actions against an heir on the bond of his ancestor would have the effect of charging the defendant in the same manner as if the action were for his own debt. But, by the 11th section of that statute, the effect of the elegit (except in certain cases, as against purchasers, mortgagees, and creditors) has been extended, so as to give the plaintiff execution of all such lands, tenements, rectories, tithes, rents, and hereditaments, including such lands and hereditaments of copyhold or customary tenure, as the debtor or any person in trust for him shall have been possessed of at the time of entering up the judgment, or at any time afterwards, or over which such person shall at the time of entering up such judgment, or at any time afterwards, have any disposing power, which he might without the assent of any other person, exercise for his own benefit. heir, and ants of lands to have execution. Secondly, of cases where a sole plaintiff or defendant has died: Where a sole plaintiff (a) 2 Chit. Arch. Prac. 8th ed. p. 1019; 2 Tidd's Prac. 8th ed. 1174, post, p. 189, 190; Wright v. Maddock, 8 Q. B. 122. (b) Bac. Abr. tit. Execution, G, 2; Dyer, 81, 207, 344; Moore, 74; Co. Litt. 103, 290. (c) Bac. Abr. tit. Scire Facias, C, 5; 2 Inst. 469; Sir William Herbert's case, 3 Co. 11; 2 Ld. Raym. 806; (d) See ante, p. 48; 2 V. Wms. (e) Bowyer v. Rivett, W. Jon. 87, 88; Brandlin v. Millbank, Carth. 93; S. C., Com. 162. 180 or defend ant has died pending a suit. Of Cases where a Sole Plaintiff or Defendant has died. [BK. II. -which may be divided into those cases in which the plaintiff or defendant has died before final judgment; and in which the plaintiff or defendant has died after final judgment. The cases in which a sole plaintiff or defendant has died before final judgment, may be classified into cases where the death has happened 1. Before verdict, and after the assizes begin. 2. After verdict, and before judgment. 4. After interlocutory, and before final judgment. The death of a sole plaintiff or defendant, at any time before final judgment, was, at common law, an abatement of the suit (ƒ), before the passing of the statute of the 17 Car. II. c. 8, the 1st sect. of which enacted, that " in all actions, personal, real or mixed, the death of either party, between the verdict and the judgment, shall not be alleged for error, so as such judgment be entered within two terms after such verdict." This statute has been held to be confined to verdicts, and not to extend to cases where either party has died, after interlocutory judgment, and before the return of the Writ of Inquiry (g). The intention of the statute was, it would seem, to make a verdict obtained against a party who dies before judgment is signed, equivalent to a judgment entered up during the lifetime of such party, provided it be entered up as the The statute statute directs (h). The statute extends to all personal actions, notwithstanding the cause of action could not have survived to the would have personal representatives of the deceased, as for a libel, &c.; theresurvived to fore an executor may enter up judgment on a verdict obtained by representa- his testator in an action for libel (i). It does not extend to a non is not confined to actions which the personal tive. does not apply to cases of nonsuit. The statute suit. Thus where a cause was tried in December, and the plaintiff was nonsuited, and the defendant died on the 5th of January following, and afterwards judgment was signed, and a scire facias was issued by the administrator to revive it, the scire facias was set aside as irregular, on the ground that the statute does not apply to cases of nonsuit (k). (f) 2 Saund. 6th ed. 72, n.; Wms. on Exec. 4th ed. 761. (g) 2 Tidd's Prac. 8th ed. 1168; Ireland v. Champneys, 4 Taunt. 884. (h) Burnett v. Holden, 1 Lev. 277; 2 Keb. 549; Saunders v. M'Gowran, 12 M. & W. 221; S. C., 3 D. & L. 405; Colbeck v. Peck, 2 Ld. Raym. 1280. (i) Palmer v. Cohen, 2 B. & Ald. 966; 2 Chitty's Arch., 8th ed. 1016; Griffith v. Williams, 1 Cr. & J. 47; Wms. on Exec. 4th ed. 762. (k) Dowbiggin v. Harrison, 10 B. & C. 480. |