plaintiff in error shall, on an affidavit of the service of such notice, be entitled to and may forthwith sign a judgment of reversal (j). error. (j) When in order to reverse a judgment in trespass and assault, allowed Confessing to go by default against an infant, error in fact was assigned on the ground of the parliamentary appearance having been entered by attorney instead of guardian, and the error was confessed; the defendant in error was allowed to enter up judgment against himself in order to enable him to bring a new action) Leonard v. Annesley, Smyth, 96); and see Jackson v. Marshall, 24 L. J. Q. B. 143. A defendant may bring error on a judgment for the plaintiff on demurrer to a replication to one of several pleas, though the plaintiff has subsequently discontinued the action except as to the costs of the demurrer (Shepherd v. Sharp, 1 H. & N. 115). Death of plaintiff in error no abatement. 182. The death of a plaintiff in error after service of the note of the receipt of the memorandum alleging error, with a statement of the grounds of error, shall not cause the proceedings to abate, but they may be continued as herein-after c. 76, s. 161. mentioned (k). & 16 Viet. (k) Previous to the Act the death of the plaintiff in error caused the pro- Death of ceedings to abate only in case the death occurred before error was assigned, plaintiff. 2 Wms. Saund. 101 t; and pursuant to the 9th Wm. 3, c. 10, s. 17 (Ir.), 8 & 9 Wm. 3, c. 11, s. 7 (Eng.), no abatement took place in consequence of the death of one of several plaintiffs (Clarke v. Rippon, 1 B. & Ald. 586). If the sole plaintiff in error died after error was assigned, the defendant should proceed to have the judgment affirmed, and should then revive the judgment in the ordinary way by scire facias, 2 Wms. Saund. 101 t. Under the present Act, as will be seen, the proceedings in no case become abated by the death of the plaintiff in error. If the party die before the note of the receipt is served his representative will have to lodge a fresh memorandum in the form prescribed by s. 167, ante. As to the consequences of the death of a defendant in error, see s. 185, post. 183. In case of the death of one of several plaintiffs in error, a suggestion may be made of the death, which suggestion shall not be traversable, but shall only be subject to be set aside if untrue, and the proceedings may be thereupon continued at the suit of and against the surviving plaintiff in error, as if he were the sole plaintiff. Death of one plaintiffs in of several 16 Vict. c. 76, s. 162. Death of sole all the plain plaintiff, or of 184. In case of the death of a sole plaintiff or of all the plaintiffs in error, the legal representative of such plaintiff or of the surviving plaintiff may, by leave of the Court or a Judge, enter a suggestion of the death, and that he is such c. legal representative, which suggestion shall not be travers tiffs in error." 15 & 16 Vict. 76, s. 169. How preceedings continued after death of plaintiff. Death of defendant in error no abatement. 15 & 16 Vict. c. 76, s. 164. Death of defendant. able, but shall only be subject to be set aside on application to the Court or a Judge on motion, if untrue, and the proceedings may thereupon be continued at the suit of and against such legal representative of the plaintiff in error; and if no such suggestion shall be made, the defendant in error may proceed to an affirmance of the judgment according to the practice of the Court, or take such other proceedings thereupon as he may be entitled to (1). (1) Previous to the Act as stated above, note (k), if the plaintiff in error died before error was assigned, the proceedings abated and the defendant should revive the judgment by scire facias before issuing execution; if the death took place after error was assigned the defendant in error should proceed to an affirmance of the judgment, which should then be revived in the usual manner before issuing execution; and it would appear from the language of the above section that a similar practice is to be followed now, and that the defendant need not proceed to have the judgment affirmed except when the death takes place after the entry of the suggestion prescribed by section 173, or assignment of error if required. In Haygarth v. Wilkinson, 12 Q. B. 851, the plaintiff having died, security for costs was, under the circumstances of the case, ordered to be given. 185. The death of a defendant in error shall not cause the proceedings to abate, but they may be continued as hereinafter mentioned (m). (m) Previous to the Act, the death of the defendant in error did not cause the proceedings to abate (2 Wms. Saund. 101 t). If the death took place before joinder in error, the plaintiff, on the one hand, might issue a scire facias ad audiendum errores against the representatives, while they, on the other hand, might have a scire facias quare executionem non to compel the plaintiff to assign error, and after affirmance they might sue out a scire facias to revive the judgment; or, if the death took place after affirmance, the representatives might revive the judgment in the ordinary manner. It will be observed that, while the present Act provides the plaintiff with a means of continuing the proceedings against the representatives of a sole or surviving defendant in error, it does not make any provision for enabling them to have the judgment affirmed. They may, accordingly, continue the proceedings in the same manner as before the Act, and after affirmance they ceedings con must revive the judgment previous to issuing execution. They may also nonpros the plaintiff without previously making themselves parties (sect. 174, ante, St. Katharine Dock Co. v. Higgs, 10 Q. B. 652 n.). How pro tinued. Where, on the death of the defendant in error, after joinder in error, his personal representative applied for leave to enter a suggestion of the death upon the roll, the Court refused the application (Bentley v. Clarke, 3 Law Rec. N. S. 121). As to entering such a suggestion upon the death of one of several defendants, see the next section. upon death. 186. In case of the death of one of several defendants in Proceedings error, a suggestion may be made of the death, which suggestion shall not be traversable, but only be subject to be set aside if untrue, and the proceedings may be continued against the surviving defendant. of one of several deerror. 15 & 16 fendants in Vict. c. 76, s. 165. upon death all the de 187. In case of the death of a sole defendant, or of all the Proceedings defendants in error, the plaintiff in error may proceed, upon giving ten days' notice of the proceedings in error, and of his intention to continue the same, to the representatives of the deceased defendants, or, if no such notice can be given, then, by leave of the Court or a Judge, upon giving such notice to the parties interested as he or they may direct (n). (n) See ante, sect. 185, note (m). 188. The marriage of a female plaintiff or defendant in error shall not abate the proceedings in error, but the same may be continued in like manner, as herein before provided, with reference to the continuance of an action after marriage (o). of sole de- 16 Vict. c. 76, Marriage not ceedings in 16 Viet. c. 76, to abate pro error. 15 & s. 167. (0) See sect. 161, ante. Previous to the Act, the marriage of a female Marriage. plaintiff in error caused the writ of error to abate (Jenkins v. Bates, 2 Str. 1015). Bankruptcy does not cause the proceedings to abate (Kretchman v. Beyer, Bankruptcy. 1 T. R. 463). 189. In case any action, suit, or proceeding in any of the Superior Courts of Law or in a Court of Equity shall be commenced, sued, or prosecuted in disobedience of any writ of injunction, rule or order of the Court of Chancery or of any of the Superior Courts of Law, upon production of such writ of injunction, rule or order, to the Court in which such action, suit, or proceeding shall be commenced, prosecuted, or taken, or any Judge thereof, the said Court or a Judge shall stay all further proceedings contrary to such injunction, rule or order, and thenceforth all further and subsequent proceedings shall be utterly null and void: Provided always, that nothing herein contained shall be held to vary or abridge the liability of any person commencing, suing, or prosecuting such action, suit, or proceeding, contrary to such injunction, rule, or order aforesaid, to any attachment, punishment, or other proceeding to which such person shall or may be liable in case of contempt of the Court of Chancery, or Superior Effect of injunction. Giving consent for judgment. General Matters. Pleadings dated of time of pleading. 15 & 16 Vict. c. 76, s. 54. Entitling pleadings. Court of Law aforesaid, in regard to the commencing, suing, or prosecuting such action, suit, or proceeding (p). (p) Previous to the Act, an injunction, or decree of the Court of Chancery, was attended with no specific effect upon the proceedings, which might be continued, notwithstanding the injunction (Horne v. Tooke, 2 Dowl. 776); and the only way the party aggrieved could enforce the injunction was by procuring an attachment or other process to be issued out of the Court of Chancery. The Court of law is, however, now bound specifically to enforce an injunction, rule or order of the Court of Chancery, or one of the Superior Courts, by staying further proceedings, and an order will be made under this section when an order has been made by the Court of Chancery for an injunction, although the writ has not been actually issued (Cobbett v. Ludlam, 25 L. J. Ex. 25. Unless, however, the Court of Chancery has ordered an injunction to issue, the proceedings will not be stayed merely because proceedings are pending in that Court (Pearse v. Robins, 26 L. J. Ex. 183); and it should be remembered that the section only applies when the proceedings are taken in one of the Superior Courts, and therefore does not apply when the proceedings are taken elsewhere, as, for instance, in the Court of Admiralty (Milburn v. The London & S. W. Rly. Co., L. R. 6 Ex. 4). Proceedings will not be stayed, because proceedings are pending between the same parties in a foreign Court (Cox v. Mitchell, 7 C. B. N. S. 55). If, however, proceedings be vexatiously taken in another Court by the plaintiff, the Court may, in the exercise of its equitable jurisdiction, stay the action (Frith v. Guppy, L. R. 2 C. P. 32). As to ruling a plaintiff, who proceeds both at law and in equity, for not proceeding to trial within the period of time prescribed by the 106th section of the Act, see ante, p. 119. By 25 Geo. 3, c. 51, s. 1 (Ir.), it is enacted, "that in all injunctions which shall issue out of any Court of Equity, to stay any defendant from proceeding at law (except upon good and sufficient equity, confessed in the answer of such defendant), there shall be inserted a proviso that such defendant shall be at liberty to call for a plea, and to proceed to trial thereon, and for want of a plea to enter up judgment, but execution to be stayed." Where an action is brought in contravention of a Judge's order made in another matter, the Court will, of course, stay the proceedings (Kelly v. Falls, 1 Ir. L. T. 702). With respect to general matters connected with the action: 190. Every defence and demurrer and other pleading shall be entitled of the proper Court, and of the day of the month and the year when the same was pleaded, and shall be entered on the abstract for Nisi Prius, and on the judgment book or roll under the date of the day of the month and year when the same respectively took place (q). (9) The pleading should be correctly entitled upon the face of it, and if it be incorrectly entitled or dated it may be set aside as irregular (Watt v. Cooper, 1 Ir. C. L. R. 85; Kipling v. Watts, 4 Dowl. 290). If incorrectly entitled it will not, however, be void (Hodson v. Parnell, 4 M. & W. 373). A summons and plaint and defence, or other pleading, must be dated as of the day upon which it is issued or filed, and the Court cannot allow it to be issued or pleaded nunc pro tunc, even to save the Statute of Limitations (Clarke v. Smith, 2 H. & N. 753), unless the writ or pleading has not been issued or filed in consequence of a default upon the part of the officer of the Court (Nazer v. Wade, 1 B. & S. 728; Evans v. Jones, 2 B. & S. 45). When a writ or pleading is amended, the amended writ or pleading bears Date of the same date as the original writ or pleading (Coombs v. Bristol and Exeter amended Railway Co., 1 F. & F. 206; Short v. Simpson, L. R. 1 C. P. 248, 250 n., pleading. in which case the amendment consisted in the addition of a new plea); but see Knight v. Warren, 7 Dowl. 663. tested and well as in 191. Every writ of any description whatsoever to be here- Writs to be after issued out of the said Superior Courts of Common Law returnable in or the Court of Exchequer Chamber may be issued and tested vacation as or made returnable on any day, not being one of the days term. hereby appointed as holidays (r), whether such day shall be in term time or vacation, and every such writ so issued, tested, or returnable shall be of the like validity, force, and effect as if the day of the issuing, testing, or return of such writ were actually a day in term: Provided always, that nothing herein contained shall affect the process and practice of the revenue side of the Court of Exchequer. (r) When the return to a writ of sci. fa. purported to have been made on Whit Monday, it was held not to be a nullity (Brown v. Cochrane, 3 Ir. Jur. O. S. 352). 192. Every rule or order in the said Superior Courts and the Court of Exchequer Chamber may be made, entered, or issued on or as of any day except the days hereby appointed to be observed and kept as holidays, whether such day shall be in term time or vacation; and the days limited for compliance with such rules or orders shall, with the exception of the days hereby appointed to be observed and kept as holidays, and of the days between the first day of August and twentieth day of October, run in vacation as well as in term time (8). (s) As to the manner in which time is to be computed, see further, sect. 231, post; and the 6th G. O., 1854, and the notes thereto. Rules shall issue and run in vaca tion as well as in term time. Court on motion may order a fixed paid in lieu 193. In all cases upon interlocutory applications where the Court or a Judge shall deem it proper to award costs to either party, it shall be optional with the Court or a Judge either sum to be to refer the costs to the taxing officer to be taxed, or by the of taxed order direct the payment of a sum in gross in lieu of taxed costs. costs, and also to direct by and to whom such sum in gross shall be paid. |