M. 363. (101) If there be more plaintiffs than one, and any of them dies, and if the cause of action does not survive to the surviving plaintiff or plaintiffs alone, but survives to him or them and Proceeding in case of death of one of several plaintiffs where cause of action survives to survi vors and representative of deceased. the legal representative of the deceased plaintiff jointly, the Court may, on the application of such legal representative, enter his name on the record in the place of such deceased plaintiff, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs and such legal representative (n) M. 364. (101) If no application be made to the Court by any person claiming to be the legal representative of a deceased plaintiff, the suit shall proceed at the instance of the surviving plaintiff or plaintiffs; Proceeding where no application made by representative of deceased plaintiff. and the legal representative (if any) of the deceased plaintiff shall be made a party and shall be interested in and bound by the decree passed in the suit, in the same manner as if the suit had proceeded at his instance conjointly with the surviving plaintiff or plaintiffs. Proceeding in case of death of sole, or sole surviving, plaintiff. M. 365. (102) In case of the death of a sole plaintiff or sole surviving plaintiff, the Court may, where the cause of action survives, on the application of the legal representative of the deceased, enter his name in (o) the place of such plaintiff on the record, and the suit shall thereupon proceed. M. 366. (102) If no such application be made to the Abatement where no apCourt by any person claiming to be plication by representative the legal representative of the deof deceased plaintiff. ceased plaintiff, the Court may pass an order that the suit shall abate, and award to the defendant the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff; or the Court may, if it think proper, on the application of the defendant, and upon such terms as to costs or otherwise as it thinks fit, pass such other order as it thinks fit for bringing in the legal representative of the deceased plaintiff, or for proceeding with the suit in order to a final determination of the matter in dispute, or for both these pur poses. Explanation-A certificate of heirship, or a certificate to collect debts, does not of itself constitute the person holding it the legal representative of the deceased. But when the person holding any such certificate obtains thereby property belonging to the deceased, he may be treated as a legal representative liable in respect of such property. CHAPTER XXI. Actio personalis moritur cum personá. WHERE a cause of action survives, death of either party does not cause a suit to abate. When there are more plaintiffs or more defendants than one, and on the death of any one or more of either party the cause of action survives with the remainder only of such party, the Court makes an entry of the fact in the record, and the case proceeds between the survivors only. If, on the other hand, the cause of action survives to the remaining plaintiffs jointly with the legal representatives of the deceased, the Court may, at the application of such representatives, enter their names on the record in the place of the deceased plaintiff, and even if they do not so apply, they shall be made parties by the Court, and be bound by the decree in the same way as if they had sued in the first instance. If it survive death of plaintiff (sole, or sole survivor), Court may, on application of representative, enter his name on record; but if application be not made, Court shall (i) order that suit abate, and award defendant costs incurred in defence, to be recovered from estate of the deceased, or (ii) on defendant's application, and on fitting terms as to costs, pass any other suitable order for bringing in representative or proceeding to final determination of matter in dispute, or both purposes. Certificate of heirship, or for collection of debts, in itself does not constitute holder legal representative. Still, if any property of deceased be thereby recovered, he may be treated as representative quoad such property. In the event of dispute as to who is representative, Court may stay suit until the matter has been determined in another suit, or decide at or before hearing of the pending suit, who shall be admitted a legal representative to prosecute such suit. Where the right to sue survives death (i) of one of several defendants, or (ii) sole defendant, or (iii) sole surviving defendant, plaintiff may apply to Court specifying name, description, and abode of person he alleges to be representative, or wishes to be recorded defendant. Thereupon Court shall enter such name on the record, and issue summons for his appearance on a fixed day to defend the suit, and the case shall proceed as if he had been originally defendant, provided that he may object that he is not legal representative. A suit does not abate by reason of marriage of female plaintiff or defendant; it may proceed to judgment, and decree may be taken out by, or be executed against, her alone, or her husband if he be by law entitled to the subject-matter of the decree, or liable for his wife's debts. Bankruptcy, or such insolvency in which a receiver has been appointed by preceding chapter, of a plaintiff shall not bar a suit unless the assignee or receiver declines to continue suit or give security for costs within time appointed by Court. If he so decline or fail, defendant may apply for dismissal of suit on ground of bankruptcy, &c., and Court shall dismiss suit, and award costs of defence, to be proved as a debt against plaintiff's estate. On abatement or dismissal no fresh suit can be brought on same cause of action, but person claiming to be legal representative may apply for order to set aside abatement or dismissal order; and if he prove prevention from sufficient cause, Court shall set aside its order for abatement, &c. on fitting terms as to costs, &c. In other cases of assignment, creation or devolution of interest pending suit, it may, with Court's leaveand consent of all parties, or after service of written notice and hearing of object tions, be continued by or against persons to whom such cause of action has thus accrued, either in addition to, or substitution for, the person from whom it has passed, as case may require. dis (mm) Personal representatives are, as a gene- the case of a covenant not running with the land, and intended not to be limited to the life of the covenantee, as a command not to fell trees, excepted from the demise, the personal representative is alone entitled to sue. In a recent case it was held that the executor of a tenant for life may recover for a breach of a covenant to repair, committed by lessee of the testator in his lifetime, without occurring a damage to the personal estate; and, in this case, the rule was stated to be, that unless the particular covenant be one for Ricketts v. Weaver 12 M. and W., 718, Procedure in case of dis pute as to representative of deceased plaintiff. M. 367. (103) If any dispute arise as to who is the legal representative of a deceased plaintiff, the Court may either stay the suit until the fact has been determined in another suit, or decide at or before the hearing of the suit who shall be admitted to be such legal representative for the purpose of prosecuting the suit. M. 368. (104) If there be more defendants than one, and any of them die before decree and the cause of action does not survive against the surviving defendant or defendants alone, Procedure in case of death of one of several defendants, or of sole or sole surviving defendant. and also in case of the death of a sole defendant, or sole surviving defendant, where the right to sue survives, the plaintiff may make an application to the Court, specifying the name, description, and place of abode of any person whom he alleges to be the legal representative of the deceased defendant, and whom he desires to be made the defendant in his stead. The Court shall thereupon enter the name of such representative on the record in the place of such defendant, and shall issue a summons to such representative to appear on a day to be therein mentioned to defend the suit; and the case shall thereupon proceed in the same manner as if such representative had originally been made a defendant and had been a party to the former proceedings in the suit: Provided that the person so made defendant may object that he is not the legal representative of the deceased defendant, or may make any defence appropriate to his character as such representative. 369. (105) The marriage of a female plaintiff or defenSuit not abated by mar- dant shall not cause the suit to abate, riage of female party. but the suit may notwithstanding be proceeded with to judgment, and where the decree is against a female defendant, it may thereupon be executed against her alone. If the case is one in which the husband is by law liable for the debts of his wife, the decree may, with the permission of the Court, be executed against the husband also; and in case of judgment for the wife, execution of the decree may with such permission be issue upon the application of the husband, where the husband is by law entitled to the subject-matter of the decree. 370. (106) The bankruptcy or insolvency of a plaintiff in any suit which his assignee or the receiver appointed under section 351 might maintain for the When plaintiff's bankruptcy or insolvency bars suit. breach whereof, in the lifetime of the lessor, the heir alone can sue, the executor may sue, unless it be a mere personal contract. The personal representative, moreover, may sue, not only for the recovery of all debts due to the deceased by speciality or otherwise, but on all contracts with him, whether broken in his lifetime or subsequently to his death, of which the breach occasions an injury to the personal estate, and which are either limited to the lifetime of the deceased, or, as in the instance of a submission to arbitration containing no special clause to the contrary, revoked by his death. An administrator, moreover, may sue for the price of goods sold and delivered batween the death of the intestate and the taking out letters of administration; but he cannot sue in his representative character upon contracts made after the death of the intestate in the course of carrying on the intestate's business. An action, however, is not maintainable by an executor or administrator for a breach of promise of marriage made to the deceased, where no special damage is alleged; and, generally, with respect to injuries affecting the life or health of the deceased,-such, for instance, as arise out of the unskilfulness of a medical practitioner, or the negligence of an attorney. or a coach proprietor,-the maxim as to actio personalis is applicable, unless some damage done to the personal estate of the deceased be stated on the record. But, where the breach of a contract relating to the person occasions a damage, not to the person only, but also to the personal estate, as, for example, if in the case of negli gent carriage or cure there was consequential damage; if the testator had expended his money, or had lost the profits of a business, or the wages of labour for a time; or if there were a joint contract to carry both the person and the goods, and both were injured; it seems a true proposition that, in these cases, the executor might sue for the breach of contract, and recover damages to the extent of the injury to the personal estate. The personal representatives, on the other hand, are liable, as far as they have assets, on all the covenants and contracts of the deceased broken in his lifetime, and likewise on such as are broken after his death, for the due performance of which his skill or taste was not required, and which were not to be performed by the deceased in person. Further, the personal representatives are liable on a covenant by deceased for their performance of a particular act, as for payment of a sum of money for building a house left unfinished by the deceased; or on his contract for the performance of work by the plaintiff, before the completion of which he died, but which was subsequently completed. And the same principle was held to apply where an intestate had entered into an agreement to receive from plaintiffs a certain quantity of slate monthly for a certain period, a portion of which, when tendered after his death, but before the expiration of the stipulated period, his administrator refused to ac cept. It is, however, to actions in form ex delicto that the rule actio personalis moritur cum persona is peculiarly applicable; indeed, it has been observed that this maxim is not applied in the old authorities to causes of action on contracts, but to those in tort which are founded on malfeasance to the person or property of another, which latter are annexed to the person, and die with the person, except when the remedy is given to the personal representative by the statute law, it being a general rule that an action founded in tort, and in form ex delicto, was considered as actio personalis and within the above maxim. Broom's Legal Maxims, 1904. Generally to sustain an action by a personal representative, there must be an injury to the personal estate. "The right of action founded upon any obligation, contract, debt, covenant or other duty, in which the testator or intestate might have sued or have been sued in his lifetime, survives his death and is transmitted to and enforceable against his executor or administrator." Sidney Smith. Principles of Equity, 591, A master cannot maintain an action for injuries which cause the immediate death of his servant. The declaration against the defendant was for injuries caused to plaintiff's “daughter and servant" by the negligent driving of defendant's servant, by reason of which she was killed on the spot; and the special damages claimed were the loss of the daughter's services and her burial expenses. The plea raised was that the daughter was killed on the spot, and it was accepted as a good plea. Osborne v. Gillett, Ex. VIII, 88. (n) The words "cause of action" mean "right to bring the action." Chandramohan Dutt v. Biswambhar Laha, B. L. R., I., O. C., 42. (0) This sec. does not bar the right of heirs to proceed with an appeal as against joint heirs. Musst Luteefooninssa Bibi v. Syud Rajaoor Ruhman and others, S. W. R., VIII. 84. The death of an appellant was held to be no reason for the abatement or postpone ment of a case which was being conducted by an agent of the deceased defendant, benefit of his creditors shall not bar the suit, unless such assignee or receiver declines to continue the suit and to give security for the costs thereof within such time as the Court may order. If the assignee or Procedure when assig nee fails to continue suit or give security. receiver neglect or refuse to continue the suit and to give such security within the time so ordered, the defendant may apply for the dismissal of the suit on the ground of the plaintiff's bankruptcy or insolvency, and the Court may dismiss the suit and award to the defendant the costs which he has incurred in defending the same, to be proved as a debt against the plaintiff's estate. 371. When a suit Effect of abatement on parties' right. abates or is dismissed under this chapter, no fresh suit shall be brought on the same cause of action. But the person claiming to be the legal representative Application to set aside abatement or dismissal. of the deceased bankrupt or insolvent plaintiff, may apply for an order to set aside the order for abatement or dismissal, and if it be proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal *See page 235. upon such terms as to costs or otherwise as it thinks fit. *(0) 372. In other cases of assignment, creation or devolution of any interest pending the suit, the suit may, with the leave of the Court, given either with the consent of all parties or after service of notice in writing upon them, and hearing their objections, if any, be continued by or against the person to whom such interest has come, either in addition to or in substitution for the person from whom it has passed, as the case may require. Procedure in case of assignment pending the suit. CHAPTER XXII. OF THE WITHDRAWAL AND ADJUSTMENT OF 373. (97) If, at any Power to allow plaintiff to withdraw with liberty to bring fresh suit. SUITS. time after the institution of the suit, the Court is satisfied on the application of the plaintiff (a) that the suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for permitting him to withdraw from the suit or to abandon part of his claim with liberty to bring a fresh suit for the part so abandoned, the Court may grant such permission on such terms as to costs or otherwise as it thinks fit. (P) |