BOOK IV.
PART I.

Death before
Verdict or

Default.

:

as the case may be, may be maintained by the executors or
administrators of any person deceased, for any injury to the
real estate of such person, committed in his lifetime, for which
an action might have been maintained by such person, so as such
injury shall have been committed within six calendar months
before the death of such deceased person, and provided such ac-
tion shall be brought within one year after the death of such
person and the damages, when recovered, shall be part of the
personal estate of such person; and further, that an action of tres-
pass, or trespass on the case, as the case may be, may be main-
tained against the executors or administrators of any person de-
ceased for any wrong committed by him in his lifetime to ano-
ther, in respect of his property, real or personal, so as such
injury shall have been committed within six calendar months
before such person's death, and so as such action shall be
brought within six calendar months after such executors or
administrators shall have taken upon themselves the adminis-
tration of the estate and effects of such person; and the damages
to be recovered in such action shall be payable in like order of
administration as the simple contract debts of such person." It
will be observed, that this enactment has some limitations, and
does not extend to injuries to the person. Although the statute
expressly gives an action in form ex delicto, yet, where an ac-
tion ex contractu would lie before the statute, it may still be
brought. Therefore, where the testator had wrongfully taken
coal from the plaintiff's land, and sold it, and received the
proceeds, though no direct evidence was given of the sum
received, but merely of the fact of the sale, it was held, that
the plaintiff might bring money had and received, for so much
as was raised before the six months, and trespass under the
above act, for so much as was raised within the six months (a).
If an action be brought by a termor upon the 7 & 8 G. 4,
c. 31, for an injury done to his house, within three calendar
months from the offence committed, and that action abates by
the death of the termor, after the three months have expired,
his executor cannot, it seems, bring a fresh action (6). And it
is a matter of doubt, whether an executor of a termor can, in
any case, bring an action upon that statute for an injury sus-
tained in the lifetime of his testator (c).

Death before Verdict or Judgment by Default.] If a sole plaintiff or defendant die before verdict or judgment by deJudgment by fault, the action abates, and the plaintiff or his executor is obliged to commence a new action against the defendant or his executor, provided the cause of action survive to or against the executor(d). But where a person admitted to defend alone as landlord in ejectment died before trial, having devised all his real estates to J. S., and the Statute of Limitations prevented the lessor of the plaintiff from bringing a fresh ejectment, the court, upon application, gave the lessor of the plaintiff leave

(a) Powell v. Rees, 2 Nev, & P. 571; 7 Ad. & E. 426, S. C.

(b) Adam v. Inhabitants of Bristol, 4 Nev. & M. 144; 2 Ad. & Ell. 389, S. C. (c) See 1 Williams on Executors, 2nd ed. 565.

(d) See Cutfield v. Coney, 2 Wik 83: Wallop v. Irwin, 1 Wils. 315: Taylor v. Harris, 3 B. & P. 549. As to when the death takes place during the assizes or sittings, see ante, 822.

to sign judgment against the casual ejector in the old suit, CHAP. XXXIII unless J. S. would appear and defend the action as landlord (d). Where a sole plaintiff dies pending the action, it seems the proper course for the defendant to take, if the action be continued, is by plea in abatement or writ of error, according to the stage of the cause. The Court of Exchequer refused to arrest the judgment or to stay the postea in the hands of the associate, though circumstances were brought before them shewing a strong probability of the plaintiff's having died before the trial (e).

Where there are several plaintiffs or defendants, and some of one of of them die, if the cause of action survive to or against the several. others, the action does not abate; but the death being suggested upon the roll, the action proceeds by or against the survivors (ƒ). But in an action by husband and wife for money lent by the wife before marriage, the death of the wife before trial was holden to abate the suit (g).

before final

Defendant.

Death after Verdict and before Final Judgment.] If a sole Death after plaintiff or defendant die after verdict, or even after the assizes Verdict and begin, or after the first day of the sittings, though before the Judgment. trial, and before final judgment, the action is not thereby of a sole abated; but final judgment is signed within two terms, as if Plaintiff or the party were alive, and then revived by scire facias by or against the executor, &c. (h). See fully as to where and how the judgment in this case must be entered, &c., ante, 821, 822. The action would not, in this case, be abated, although it were for a cause of action, as for a libel, &c., which could not be originally brought by an executor(į).

several.

So, if one of several plaintiffs or defendants die after verdict of one of and before judgment, the action does not abate; but the death being suggested on the roll (k), judgment is entered by or against the survivors, and execution sued out accordingly (1). Although the plaintiff has died after verdict, the court may, New Trial it seems, grant a new trial on the application of the defendant, and would in such case impose terms on him to prevent his taking advantage of the plaintiff's death (m).

after.

locutory and

ment.

tiff or Defen

Death between Interlocutory and Final Judgment.] If a sole Death beplaintiff or defendant die after judgment by default, and before tween Interfinal judgment, the action shall not abate, if it be such as Final Judgmight originally be prosecuted by or against the executors (n); but the judgment may be revived by scire facias, and the of sole Plainparties may thereupon proceed to final judgment (o). The dant. court, in such a case, before the recent rule of H. T., 4 W. 4, r. 2, (ante, Vol. I. 341), referred it to the master to compute principal and interest on a bill of exchange, during the same term in which the plaintiff died, without a scire facias; because the

(d) Doe Grubb v. Grubb, 5 B. & C. 457.
(e) Johnson v. Hamilton, 4 Dowl. 762.
(f) Ante, 1171, 1172.

(g) Checchi v. Powell, 6 B. & C. 253.
(h) 17 Car. 2, c. 8: ante, 821, 822.
(i) Palmer v. Cohen, 2 B. & Adol. 966:
see Copley v. Day, 4 Taunt. 702: Toulmin
V. Anderson, 1 Id. 385: Toussaint v.

PART I.

BOOK IV. final judgment would be signed as of the same term, and, having relation to the first day of it, would appear to have been signed before the plaintiff's death (p); but since that rule, as judgments have not relation to the first day of the term, but only to the day on which they are actually signed, this would not be permitted.

Of one of several.

Death after

ment.

So, if one of several plaintiffs or defendants die after judg ment by default and before final judgment, the action does not abate; but the death being suggested on the roll, the action proceeds by or against the survivors (q).

Death after Final Judgment.] If a sole plaintiff or defendant Final Judg- die after final judgment, and before execution, the action is not Of sole Plain- thereby abated; but the judgment must be revived by scire tiff or Defen- facias by or against the executors, &c.(r).

dant.

Of one of

several.

Death after
Execution.

Death after a
Writ of Error.

Death of De

fendant, how far a Dis

But where there are several plaintiffs or defendants, and some of them die after final judgment and before execution, execution may be sued out by or against the survivors, in the names of all; or, upon suggesting the death upon the roll, execution may be sued out by or against the survivors by name; or, where it is desired to have execution by elegit of the lands of a deceased defendant, the judgment may be revived by scire facias against his heirs and terretenants, and against the surviving defendants, and an elegit thereupon sued out against the lands of the deceased, and the lands and goods of the survivors (8).

Death after Execution.] If plaintiff die while defendant is charged in execution, and administration is not taken out to the plaintiff, the court will discharge the defendant, unless cause be shewn by the next of kin to the contrary (t). Where either party dies in execution, the other may sue out execution afresh against his land or goods (u). See fully as to the effect of death of plaintiff after execution, ante, 818, 872; · of defendant, Vol. I. 620, 397.

Death after a Writ of Error.] The death of a plaintiff in error, before errors assigned, abates the writ; but if it happen after the assignment of errors, it does not (x). The death of a defendant in error, however, in no case abates the writ; but the death being suggested on the roll, the writ proceeds against the survivor; or, if all the defendants die, the executors or administrators may be made parties by the scire facias ad audiendum errores (y).

Death of Defendant, how far a Discharge of his Bail.] If the principal die at any time before the return of the ca. sa., charge of his the bail are thereby discharged; but if he have not been arrest

Bail.

(p) Berger v. Green, 1 M. & Sel. 229: see Calvert v Tomlin, 5 Bing. 1, 5; 2 Moo. & P. 1 S. C.: ante 679.

(q) Ante, 1171. See form, Chit. Forms, 640: see Fort v. Oliver, 1 M. & Sel. 242.

(r) Ante, 819.

(8) Ante, 1171.

(t) Parkinson v. Horlock, 2 N. R. 240: Broughton v. Martin, 1 B. & P. 176: Wagstaffe v. Darby, Barnes, 366.

(u) 21 Jac. 1, c. 24: see Farncombe v. Kent, 2 Dowl. 464.

(z) Vol. I. 354.

(y) Vol. I. 354, 355.

ed on the ca. sa., and die after it is returnable, the bail are CHAP. XXXIII fixed (z). This, however, has reference only to bail to the action; bail in error are liable, notwithstanding the death of their principal. See also in what cases the death of the defendant is a discharge of the bail to the sheriff, Vol. I. 567.

Bankruptcy of Parties.] We have already seen how far Bankruptcy the bankruptcy of parties abates the action (ante, 825, 826).

If a defendant become a bankrupt, and obtain his certificate before his bail are fixed, the bail are thereby discharged (a); and the same, it seems, as to bail to the sheriff (b). And if a bankrupt be in custody in execution, and obtain his certificate, he may be discharged upon application to the court wherein judgment was obtained, or to a judge at chambers (c). Also, before the bankrupt has obtained his certificate, a creditor at whose suit he is in custody cannot prove his debt under the fiat until he have first relinquished his action against the debtor, and all benefit whatever from the same (d). Nor can a creditor, who has taken his debtor in execution, sue out a fiat of bankruptcy against him for the same debt (e).

of Parties.

Feme Plain

Marriage of Feme Plaintiff or Defendant.] The marriage of Marriage of a feme sole plaintiff renders the suit abateable, but the de- tiff or Defenfendant, to take advantage of it, must plead it specially (ƒ). dant. If a feme sole plaintiff obtain judgment, and marry before execution, a scire facias must be sued out in order to make the husband a party to the judgment (g). So, if a feme sole defendant, after judgment against her, marry before execution, a scire facias will be necessary, in order to make the husband a party to the judgment, so as to have execution against both (g); or a ca. sa. may be sued out against the wife alone (h). Where a feme sole defendant in ejectment married before trial, and judgment was signed and a writ of possession and fi. fa. issued against her, the court refused to set them aside; inasmuch as the judgment and writ of possession were not irregular, and the fi. fa. was inoperative (i). But if a feme sole plaintiff in error marry pending the writ, the writ is thereby wholly abated (k).

As to the effect of marriage on an action in general, see ante, 896, &c.

CHAPTER XXXIV.

MOTIONS AND RULES.

SECT. 1. Rules granted upon Motion by Counsel, 1184.
2. Rules granted without Motion by Counsel, 1195.
3. Enforcing Rules for Payment of Money, Costs,
&c., under 1 & 2 V. c. 110, s. 18, 1196.

BOOK IV.
PART I.

On what Side

SECT. 1.

Rules granted upon Motion by Counsel.

RULES granted upon motion by counsel are granted in the of the Court. Queen's Bench, either on the plea side, or on the crown side of the court. There is no crown side in the Common Pleas or Exchequer of Pleas. But rules for attachment in cases of contempts, &c., which are indeed of a criminal nature, though having relation to a civil suit, may be moved for in any one of the courts, and they shall be considered in a subsequent part of the Work, where we shall have to treat of attachment generally.

Rules on the plea side of the courts are common or special: the former being obtained from the master without any assistance of counsel, the latter being obtained through means of that assistance.

Rules granted Rules granted upon the plea side, upon motion by counsel, upon motion may be classed under the following heads:-1st, Those which Motion three Kinds. are granted upon the motion paper being merely signed by counsel, without any motion being actually made in court;2ndly, Those which are considered so much as a matter of course, that the grounds of the motion are not particularized by counsel, and where in some instances counsel may hand the motion paper to one of the masters, without making the motion rirâ voce-and 3rdly, Those which are granted upon the grounds of the motion being particularized by counsel.

Rules absolute in the

first Instance,

Rules Absolute in the first Instance, or Nisi, how obtained, &c.] The first class of the above rules, namely, those which are or Nisi, how granted upon the mere signature of counsel, are absolute in the obtained, &c. first instance, and may be obtained thus :-Get the motion paper signed by counsel; take it to the master's office, and draw up the rule; serve a copy of the rule upon the opposite attorney.

The remaining two classes of the above rules are either absolute in the first instance, or rules to shew cause. If absolute in the first instance, they are obtained thus :-Let an affidarit be made of the facts necessary to support the application, (see post, 1207), annex it to the motion paper, and indorse the latter cor