Death of sole defendant.

After defence filed.

Executor's defences.

Costs of executor where defendant,

Death be

tween verdict and judg

quent thereto to the same judgment as in an action originally commenced against the executor or administrator (w).

(s) This is a new enactment extending only to cases where the right survives. As to what rights survive, see Broom's Maxims, 5th Ed. p. 904, et

seq.

(t) As to how and when the suggestion is to be made, see ante, ss. 156 & 157, notes (n) & (q). It may be entered, without the leave of the Court (M'Mahon v. Ellis, 12 Ir. C. L. R. 457). For a form of suggestion, see Chitty's Forms, 10th Ed., p. 880. The suggestion in question can only be entered by the plaintiff. As to the course to be adopted by the executor of the defendant, in case the plaintiff neglects to enter the suggestion, see sect. 93 of the Common Law Procedure Act; and see, also, sect. 159, post. (u) If the defendant has pleaded before death, it would seem from the above section that judgment by default will go against the executor if he do not appear and file a defence-his non-appearance amounting to a waiver of the defences. See Day's Common Law Procedure Act, Ed. p. 118.

(e) The defences which the executor may file, are such as ne unques executor, plene administravit, &c. Ifthe executor admits his representative capacity, and intends to rely on the defences previously filed, it would appear that the proper course for him to adopt is to file a defence admitting his representative capacity, and claiming the benefit of the former defences.

(w) Where a plaintiff discontinued after appearance by an administratrix, she was held to be entitled to the whole of defendant's costs (Benge v. Swaine, 15 C. B. 784). In the case of an ordinary action against an executor, he is entitled to costs as in ordinary cases if he succeeds. If the plaintiff takes a judgment of assets, quando accederint, on a plea of plene administravit, he is entitled to a judgment for costs, de bonis testatoris, but not de bonis propriis (De Tastet v. Andrade, 1 Chit. Rep. 629); and at the same time the defeudant is entitled to the general costs of the cause (Iggulden v. Terson, 2 Dowl. 277, 2 Wms. Ex. 6th Ed. p. 1828), but see Marshall v. Wilder (in error), 9 B. & C. 655; and see, also, sect. 60, ante, p. 57).

In case of a judgment by default against an executor, the plaintiff, it seems, is entitled to a judgment for costs de bonis propriis (Smith v. Tateham, 2 Ex. 205, 209, per Parke, B.). If an executor pleads a defence which is false within his own knowledge (as ne unques executor), he is liable to costs, de bonis propriis. If he pleads a plea which is false, but not within his own knowledge (as that the testator did not promise), he is liable to costs de bonis propriis, if there be not assets sufficient (Howard v. Jemmett, 3 Burr. 1368); and see ante, sect. 137, p. 160.

159. The death of either party between the verdict or nonsuit and the judgment, shall not hereafter be alleged for error, so as such judgment be entered within two terms after (Ir.); 17 Ch. 2, such verdict or nonsuit (x).

ment. 7 Wm.

8, c. 7, s. 2

c. 8, s. 1,

(Eng.); 15 &

16 Vict. c. 76, 8. 139.

(x) This is a re-enactment of 7 W. 3, c. 7, s. 2 (Ir.); (17 Ch. 2, c. 8, s. 1, Eng.), with the addition that provision is made by the present section for the case of a nonsuit, which was not provided for by the enactments referred to.

though right

Unlike the other provisions of the Statute, it is applicable as well to cases Applicable. where the right does not survive to the executor as to where it does (Kramer does not surv. Waymark, L. R. 1 Ex. 241; Palmer v. Cohen, 2 B. & Ad. 966).

vive.

It has been already pointed out in the note to section 155 (which see), Judgment that, in cases where the delay in entering up judgment arises from the act of nunc pro the Court, the Court will allow judgment to be entered up nunc pro

tunc.

n such cases it makes no matter whether two or more terms have elapsed, provided, originally, the judgment could have been entered up in the lifetime of the deceased party, or within two terms after verdict or nonsuit.

tunc.

The above section makes a verdict entered up under it equivalent to a judgment entered up during the lifetime of the deceased party, and such judgment will therefore be entitled to the same priority in the administration of the assets as an ordinary judgment recovered against the testator (Burnett v. Holden, 1 Lev. 277). If, however, the party dies before the Death of assizes, or sittings, the Statute does not apply, and judgment cannot be party during entered up under it, and it will be necessary to enter a suggestion under the earlier sections of the Act (Taylor v. Harris, 3 B. & P. 549); but the section does extend to the case of the death of a party after the beginning of the assizes (Anon., 1 Salk. 8), or after the first day of the Nisi Prius sittings, though before the trial (Jacobs v. Miniconi, 7 T. R. 31). It would be different if the trial were in the Consolidated Nisi Prius Court. See Johnson

v. Budge, 3 Dowl. 207; Taylor v. Harris, ubi supra.

It is sufficient if the judgment be signed within the two terms, though it be not enrolled (Helie v. Baker, 1 Sid. 385), or the costs taxed (Frewer

v. Lethbridge, 28 L. J. Ex. 243).

assizes.

Where a verdict is found, with leave reserved to the other party to move. Where leave if either party die before the motion can be made, the proceedings may go reserved. on if the executor is before the Court, though no suggestion has been entered (Freeman v. Rosher, 13 Q. B. 789). The executor must, however, be before the Court (Solman v. Allen, 1 M. & G. 96; Rutledge v. Rutledge, 4 Ir. C. L. R. 424; Wallace v. Brown, 4 Ir. Jur. N. S. 84). In the absence, however, of a legal representative of a deceased plaintiff, his former attorney may be permitted to show cause against a rule obtained by the defendant (Moore v. Roberts, 3 C. B. N. S. 844).

Granting a new trial after death.

Where a successful party dies after verdict, the Court may, at the instance of the other party, grant a motion for a new trial, on the usual grounds, and at the same time impose terms preventing any advantage being taken of the death (Griffiths v. Williams, 1 C. & J. 47, in which case the action was for breach of promise of marriage). And in Kinneen v. Persse, 9 Ir. C. L. R. Ap. 23, the Court, after the death of a sole defendant, granted a conditional order for a new trial, on a motion made on behalf of the executors. Where a defendant obtained a verdict, and then died, and judgment was Costs may be entered up within two terms, the Court ordered the taxing master to tax the defendant's costs (Robinson v. Whelan, 6 Ir. Jur. O. S. 112).

In all the cases coming within the above section, the judgment, when entered up, must, of course, be revived before further proceedings are taken.

taxed.

If the two terms mentioned in the section are suffered to elapse, the only Where two remedy will be to enter a suggestion pursuant to the other sections of the terms have Act, which can only be done where the action survives. However, as before elapsed. mentioned, this will be unnecessary if leave be granted to enter the judgment nunc pro tunc.

interlocutory and before final judg

3, c. 10, s.6

(Ir.) ; 8 & 9 Wm. 3; c. 11, s.6 (Ir.);

c. 76, s. 40.

Death after 160. If the plaintiff in any action happen to die after an interlocutory judgment and before a final judgment obtained ment. 9 Wm. 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 15 & 16 Vict. defendant die after such interlocutory judgment and before final judgment 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 (y); and the plaintiff, or if he be dead after such interlocutory judgment, his executors or administrators, shall and may have a writ of revivor, in the appropriate Form, No. 13. (z) contained in the Schedule B. to this Act, annexed, 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 not appear and defend at the return of such writ, or shall not show or allege any matter sufficient to arrest the final judgment, a writ of inquiry of damages shall be awarded, or the amount for which final judgment is to be signed shall be referred to the Master, as hereinbefore provided; and upon the return of the writ, or delivery of the order with the amount endorsed thereon to the plaintiff, or his executors or administrators, final judgment shall be given for the said plaintiff, his executors or administrators, prosecuting such writ of revivor against such defendant, his executors or administrators, respectively.

Only applies where right survives.

Form of writ.

(y) This is substantially a re-enactment of 9 Wm. 3, c. 10, s. 6. Unlike the previous section, it only extends to cases where the right survives, and consequently where, in an action of libel, the defendant died after interlocutory judgment, and after the execution of the writ of inquiry, it was held that the action could not be revived (Ireland v. Champneys, 4 Taunt. 884). Neither does the section extend to the case of one of two defendants dying after an interlocutory judgment (Fort v. Oliver, 1 M. & S. 242). The action must then be prosecuted against the surviving defendant. Proceedings may be taken, it would appear, although a considerable interval of time has elapsed (Brown v. Evans, 2 Tyr. 389).

(z) The form is 11 A, and not 13. When the death takes place before the writ of inquiry has been executed, the writ of revivor should call on the defendant, or his executor, to show cause why the damages should not be assessed and recovered; but if the death takes place after the execution of the writ of inquiry, it should call on him to show cause why the damages should not be recovered. When the writ of revivor is issued against the

executors of a deceased defendant, the final judgment should be entered, it would seem, against the executor or administrator, and not against the testator or intestate, 2 Wms. Saun. 72 r. Under the old practice, moreover, when a defendant died, after interlocutory and before final judgment, two sci. fas. were necessary, one to revive the action, the other to give the executor an opportunity of pleading any matter appropriate to his character (2 Wms. Saun. 72 r; Poulett v. Wightman, 1 Bligh, N. S. 138); and it would appear that two writs of revivor would be also necessary now in a similar case (Ch. Ar. Pr., 12th Ed. p. 1129).

161. The marriage of a female plaintiff (a) or defendant (b) shall not cause the action to abate, but the action may not withstanding be proceeded with to judgment; and such judgment may be executed against the wife alone, or, by suggestion or writ of revivor pursuant to this Act, judgment may be obtained against the husband and wife, and execution issue thereon; and in case of a judgment for the wife recovered before or after her marriage in an action commenced by her when sole, upon which she would be entitled to execution if she had continued sole, execution may be issued thereupon by the authority of the husband without any writ of revivor or suggestion; and if in any such action the wife shall sue or defend by attorney appointed by her when sole, such attorney shall have authority to continue the action or defence, unless such authority be countermanded by the husband, and the attorney changed according to the practice of the Court.

riage an abatement.

(a) Under the old law, if a female plaintiff married pending the action, When marthe action became abated, and the defendant might plead the marriage in abatement. If he did not so plead, however, execution might be issued without a scire facias (Walker v. Golling, 11 M. & W. 78). Under the above section, the action may be proceeded with to final judgment, without a suggestion or other proceeding.

Again, under the old law, if a female plaintiff married after judgment, a scire facias was necessary to enable the husband to issue execution, 2 Wms. Saund. 72. This is now unnecessary by the express words of the section. The husband may, however, have a scire facias (see s. 153), if he wish, or may, perhaps, enter a suggestion, or issue a writ of revivor, pursuant to 8s. 149 & 151. The advantage of so doing arises from this--that if the husband has not been made a party to the judgment in the lifetime of the wife, he cannot, after the death, take proceedings to have execution without taking out administration (Betts v. Kimpton, 2 B. & Ad. 273). In case of a judgment against a female plaintiff, execution cannot, of course, be obtained against the husband without a scire fucias, or suggestion, or writ of revivor.

(b) Under the old law, if a female defendant married pending the action, the proceedings did not abate. If she married after interlocutory, and before

Marriage of female de

fendant.

Death of wife after execution issued.

Bankruptcy and insolvency of plaintiff,

when not to

abate action.

15 & 16 Vict.

c. 76, s. 142.

Bankruptcy

of plaintiff.

final judgment, the proper course was to enter a suggestion, and there was no necessity to issue a scire facias (Coates v. Shields, 11 Ir. L. R. 216), and the proceedings may now, in all cases, be carried on to final judgment without either a suggestion or other proceeding.

In case of a judgment against a female defendant, when she marries pending the proceedings, execution may be had against her alone, under the words of the above section (and see Thorpe v. Argles, 1 D. & L., 831). Or judgment may be revived against the husband and wife by a scire facias, or suggestion, or writ of revivor. Generally, the more advantageous course is to revive the judgment, as a fi. fa. against a feme covert will be useless, and if arrested under a ca. sa, she will be discharged unless she have separate property (Edwards v. Martin, 17 Q. B. 693; and see Poole v. Canning, L. R. 2 C. P. 241).

If the cause of action, in respect of which the action is brought, is a debt, the husband cannot, as a general rule, be now made responsible (33 & 34 Vict. c. 93, s. 12, post, in the Appendix); and under that Act it will also be no longer possible to render the husband liable in respect of a judgment recovered against the wife before marriage, whenever such marriage has taken place after the 9th August, 1870. As to obtaining execution against the husband, on foot of a judgment recovered against the wife when the marriage has taken place before the period, see Morris v. Coutes, 25 L. T. 176.

If after execution awarded against husband and wife, but before it is executed the wife die, the husband is liable to the execution (7 Bac. Abr., Sci. fa. C. 6; O'Brien v. Ram, 3 Mod. 186).

If judgment be given for a female defendant, where the husband is not joined, she may, it appears, have execution for the costs in her own name. The husband could not have execution for them in his own name without making himself a party. See Wortley v. Rayner, 2 Dowl. 637; and see also Morris v. Coates, 25 L. T. 176.

162. The bankruptcy or insolvency of the plaintiff in any action which the assignees might maintain for the benefit of the creditors shall not be pleaded in bar to such action, unless the assignees shall decline to continue, and give security for the costs thereof, upon a Judge's order to be obtained for that purpose, within such reasonable time as the Judge may order, but the proceedings may be stayed until such election is made (c); and in case the assignees neglect or refuse to continue the action, and give such security within the time limited by the order, the defendant may, within eight days after such neglect or refusal, plead the bankruptcy or insolvency (d).

(c) A plea of the plaintiff's bankruptcy or insolvency, in cases where the right of action vests in the assignees, was and still is (subject to the provisions of the above section), a good plea to the further maintenance of the action.