ever, there are two or more plaintiffs or defendants, and one or more of them die after judgment, execution by fi. fa. or ca. sa. may be had within six years for or against the survivors without revivor (2 Wms. Saund. 72 l.; Cooper v. Norton, 16 L. J. Q. B. 364).

of execution debtor.

Where a party dies after execution issued, there is no necessity to revive After death the judgment in order to proceed with the execution; and in such a case the proceeds of the execution may be paid over to the executors of the deceased plaintiff (Cleeve v. Veer, Cro. Car. 459); or the execution itself, if a fi. fa., may be executed upon the goods of the deceased defendant (Wither v. Harris, 2 Ld. Raym. 1073); and on the principle that judicial proceedings are to be considered as taking place at the earliest moment of the day on which they are done, it has been held, that, where a judgment was marked, and execution issued upon the same day that the defendant died, but at a later period of the day than that at which the death occurred, the judgment and execution were regular (Wright v. Mills, 4 H. & N. 488). Where the public officer of a company, who was plaintiff, died after the issuing, but before the execution of a writ of ca. sa., it was held that a scire facias was unnecessary (Todd v. Wright, 15 L. J. Q. B. 364).

As to obtaining the discharge of a defendant arrested under a ca. sa., when the plaintiff has died and his will has not been proved, nor administration taken out, see Ryan v. Ball, 6 Law Rec. N. S. 208; Broughton v. Martin, 1 B. & P. 176.

Where it is sought to realize a judgment by obtaining a charging order or Charging a garnishee order, the judgment must be revived in the same manner, and in order. the same cases as in the case of an ordinary execution (Nolan v. Hornidge, Ir. R. 3 C. L. 48).

suggestion.

149. In case it shall become necessary to revive a judgment Judgment to by reason of lapse of time or of a change, by death or other- be revived by wise, of the parties entitled or liable to execution, the party 15 16 Viet. alleging himself to be entitled to execution may apply to the c. 76, s. 129. Court or a Judge, on an affidavit ascertaining the amount due, for leave to enter a suggestion upon the record of the judgment to the effect that it manifestly appears to the Court that such party is entitled to have execution of the judgment for the said sum, and to issue execution thereupon for the same, such leave to be granted by the Court or a Judge upon such terms and in such manner as to the Court or a Judge shall seem fit (t).

(t) When a party seeks to revive a judgment, there are three ways in How judgwhich he may proceed for that purpose. He may, in the first place, apply mentrevived.

for leave to enter a suggestion under this and the following section of the Act; or he may issue a writ of revivor under the 151st section, or he may issue a scire facias. The latter was the only manner in which a judgment could have been revived previous to the present Act, and was the remedy given by the Statute of Westminster the second. The proceeding, however by scire facias to revive a judgment is now practically obsolete, although it has not been abolished. Independent of the three ways mentioned, there is the Common Law remedy of an action upon the judgment itself, to which it

When necessary to revive.

How application to be made.

May be made er parte.

Conditional order only will be granted.

may still in some cases be advisable to resort. See post, notes (y), (b); and see also Waley v. Winsley, F. & F. 415, where it was held that, when the defendant denies his identity, the proper course to adopt is to bring an action upon the judgment.

In some cases the Court may allow a party to enter a suggestion upon the record, that the judgment has become vested in him, but will at the same time require him to issue a writ of revivor for the purpose of reviving the judgment before allowing him to issue execution. Thus, where new trustees of a judgment were appointed under the Trustee Acts, the Court allowed a suggestion to be entered upon the record of the appointment of the new trustees, and of the vesting of the judgment and the right to sue for and recover the amount thereof in them, and at the same time made an order, that the new trustees should be at liberty to issue a writ of revivor to revive the judgment (Smith v. Ashe, 4 Ir. C. L. R. 251; Stopford v. Evans, 3 Ir. C. L. R. 75).

Suggestions for the purpose of reviving a judgment are dealt with by this and the following section. The judgment, as before mentioned, must be revived whenever it is sought to issue execution, or take any proceeding upon foot of it after a lapse of six years, or after a change of parties entitled to or liable to execution. The change of parties entitled to execution, spoken of in the section, means a change of parties in whom the legal estate in the judgment is vested. As to the nature of suggestions in general, see the note to the 156th G. O., 1854 ; and as to the nature of the cases where the party will be allowed to proceed by suggestion, which will only be where the circumstances of the case are clear and simple, see note (u), infra.

When it is sought to enter a suggestion under this section, the party must apply to the Court or a Judge for leave to do so. The application must be supported by an affidavit ascertaining the amount due, and in addition when there has been a change of parties, the applicant must show by proper evidence the nature of the change. Thus, if the application is made by executors, it must be shown that probate has been taken out, and the probate itself should be produced (Vogel v. Thompson, 1 Ex. 60).

By the 156th G. O., 1854, it is provided, that, in all cases where a suggestion may be necessary (except in cases within the 147th section of the Act), the application for leave to enter the suggestion must, unless where otherwise provided for by the Act, be upon notice to all parties who have appeared in the action or their representatives; and in Neile v. Smith, 3 Ir. C. L. R. 76, the Judge required notice of an application for leave to enter a suggestion to be served upon the representative of a deceased conusor. However, in M'Mahon v. Ellis, 12 Ir. C. L. R. 437 (in which case the suggestion had been entered under the 156th sect. of the Act), the Court of Common Pleas held, that the General Order in question does not apply to suggestions of the description we are considering, but only to cases where it is sought to enter the suggestion under some of the various Acts of Parliament, rendering shareholders in a company liable when judgment has been recovered against the public officer of a company or against the company itself. Accordingly the well settled practice of the Courts in cases where it is sought to revive a judgment less than ten years old, is, that the party may apply ex parte in the first instance, and obtain a conditional order to enter the suggestion, which order must be made absolute in the ordinary way (Edie v. Philips, 3 Ir. C. L. R. 77; Taylor v. O'Reilly, 6 Ir. Jur. O. S. 236). The order may, it would appear, be served abroad (Stockport v. Hawkins, 1

D. & L. 204), and personal service may be dispensed with if the defendant is avoiding service (Dixon v. Thorold, 9 Dowl. 827). An absolute order may even be made in the first instance, if the circumstances of the case require it, as, for example, if the party against whom it is sought to revive is about to quit the country, or is making away with his property; and in O' Beirne v. Dowell, 3 Ir. C. L. R. 119, it was laid down, that, when it becomes necessary to revive a judgment within six years by reason of a change of parties, an absolute order may be made in the first instance. As a general rule, however, a conditional order only will be made. When the judgment which it is sought to revive is more than ten years old, the Courts of Common Pleas and Exchequer are, as a general rule, disinclined to allow a suggestion to be entered, and will leave the party to a writ of revivor; but in the Queen's Bench it is believed that a conditional order may be obtained notwithstanding the lapse of time.

As to the comparative advantages of proceeding by suggestion or by writ Comparison of revivor, it will generally be found that a writ of revivor is the better of methods. manner of proceeding. As before stated, a suggestion will not be allowed to be entered except where the case appears to the Judge to be a simple one and free from all difficulty. It involves, moreover, the taking out of two orders, viz., the conditional order and the absolute order; while on the other hand a writ of revivor may be issued as of course, and without any rule or order, at any time within ten years after the date of the judgment. If, however, there be reason to apprehend that a sham defence will be put in, the proceeding by suggestion will be preferable.

150. Upon such application, in case it manifestly appears that the party making the same is entitled to execution, the Court or Judge shall allow such suggestion as aforesaid to be entered in the form No. 10, contained in the Schedule B. to this Act annexed, or to the like effect, and execution to issue thereupon for the amount actually due, and shall order whether or not the costs of such application shall be paid to the party making the same; and in case the said costs shall be so ordered to the party making the application they shall be costs in the cause; and in case it does not manifestly appear, the Court or Judge shall refuse such application, with or without costs; provided nevertheless, that in such last-mentioned case the party making such application shall be at liberty to proceed by revivor or action upon the judgment (u).

Application tion. 15 & 16

for sugges

Vict. c. 76, 8.

130.

allowed.

(u) In order that the Court may make an order under this section it is When sugnecessary that it should manifestly appear that the party applying is entitled gestion to execution. The suggestion, moreover, is not traversable, and in this respect differs from ordinary suggestions, which when entered upon the roll the party affected by them may either demur or plead to (Bartlett v. Pentland, B. & Ad. 704). Accordingly the Court will not permit a suggestion to be entered for the purpose of reviving a judgment except in a plain case, such as a devolution by death; and therefore, where the affidavit of

the party seeking the order disclosed a number of special circumstances from which the existence of the judgment was sought to be deduced, the Court refused to permit a suggestion to be entered, the proper course in such a case being to sue out a writ of revivor (Cohoun v. Semple, 3 Ir. C. L. R. 114). So, also, where the judgment had become vested in a party after a mesne assignment, and an application was made by the personal representative of that party for the purpose of reviving the judgment against the heir and terre-tenants of the conusor, it was held that the proper course was to issue a writ of revivor (Mackesy v. Alcock, 6 Ir. Jur. O. S. 110). When the defendant denies his identity the proper course is to bring an action upon the judgment (Waley v. Winsly, 1 F. & F. 415).

See ante, p. 172, for instances of cases where the Court has permitted a suggestion to be entered by new trustees appointed under the Trustee Acts; and see also Disney v. Hamilton, 3 Ir. C. L. R. 77, in which case two out of three trustees, who were assignees of a judgment, having disclaimed, the Court made a conditional order allowing the remaining trustee to enter a suggestion under this section. As to cases where it is sought to revive a judgment entered up with stay of execution see Willis v. Gildea, 16 Ir. C. L. R. Ap. 23, referred to post.

151. In all cases (v) in which it shall become necessary to revive a judgment the party alleging himself to be entitled to execution (w) may sue out a writ of revivor (x), and such writ of revivor shall be directed to the party called upon to show cause why execution should not be awarded (y) for the amount claimed to be due, and shall bear date on the day of its issuing; and after reciting the reason why such writ has become necessary it shall call upon the party to whom it is directed to appear, within eight days after service thereof, in the Court out of which it issues, to show cause why the party at whose instance such writ has been issued should not have execution against the party to whom such writ is directed for the amount claimed to be due (%), and shall give notice that in default of defence the party issuing such writ may proceed to execution for such amount, together with the costs of such proceeding (a); and such writ may be in the form No. 11 contained in the Schedule B. to this Act annexed, or to the like effect, and may be served (b) in any county,. and otherwise proceeded upon, whether in term or vacation, in the same manner as a writ of summons and plaint; and the venue in such writ may be laid in any county, and the pleadings and proceedings thereupon (c), and the rights of the parties respectively to costs, shall be the same as in an ordinary action, so far as the same may be applicable.

(v) A writ of revivor lies in an action of ejectment (Doe v. Roe, 2 Dowl. N. S. 690), but the writ cannot be issued without the order of the Court. 108 G. O. 1854.

be sued out.

(w) As a general rule the party suing out a writ of revivor should be the By whom to person in whom the legal estate is vested. In Taffe v. Kelly, 4 Ir. L. R. 220, a judgment was allowed to be revived by the personal representative of the cestui que trust in the name of the personal representative of the plaintiff.

An equitable defence to a writ of revivor that the plaintiff had assigned over the judgment is bad (Sainthill v. Evanson, 7 Ir. C. L. R. 540, with which compare Jeffs v. Day, L. R. 1 Q. B. 372).

() A writ of revivor is not an action within the meaning of sect. 20 of the Act, see ante, page 17, note (h).

whom.

son tort.

(y) Where one of two defendants was dead a scire facias was allowed to be Against issued against the survivor and the heir and terre-tenant of the deceased defendant (Keegan v. Deakin, 4 Ir. L. R. 15). Except, however, in cases where a judgment affects lands, it will survive and cannot be revived against the personal representative of a defendant dying before a co-defendant. It would appear to be doubtful whether a judgment can be revived Executor de against an executor de son tort (O'Malley v. O'Malley, 11 Ir. L. R. 78; Shearman v. Bibby, Cr. & Dix, Ab. N. A. Cas. 618). The course to be adopted in such a case is to bring an action upon the judgment. (z) In a writ of revivor it is sufficient to describe the plaintiff as assignee What writ of of the judgment without showing how he is such assignee (Stapleton v. Bergin, 4 Ir. C. L. R. 421). In a writ of revivor against the heir and terre-tenants of a deceased conusor the writ of revivor must allege the seisin of the conusor of the lands in respect of which the execution is sought.

In every writ of revivor the plaintiff may suggest breaches if necessary, 107th G. O., 1854. A writ of revivor of a judgment obtained for a penal sum given to secure a smaller sum should claim execution only for the sum intended to be secured, and interest due, and not for the penal sum for which the judgment was originally marked (Barrett v. Driscoll, 11 Ir. Jur. N. S. 119).

As to the procedure in cases where a judgment of assets quando acciderint has been recovered against an executor, see sect. 153, post; which also see for the course to be adopted, where it is sought to obtain execution upon a judgment recovered by or against a woman who marries after the recovery of the judgment; and as to reviving a judgment entered up with stay of execution, see post, p. 177.

revivor should state.

Prayer for judgment.

(a) In an action upon a judgment the plaintiff will not be entitled to any Action upon costs without an order of the Court, 43 Geo. 3, c. 46, s. 4. A writ of re- judgment. vivor is not, however, an action upon a judgment. As to obtaining security for costs when a writ of revivor is issued, see ante, p. 49.

service.

(b) The power of the Court to substitute service of the proceedings to Substituting revive a judgment would appear to be more extensive than in the case of original proceedings. Thus service of a scire facias was substituted on a person who had acted as attorney for the conusor, and on one who had acted as his agent, notice of the order being given to the creditors of the conusor who were in possession of his property (Cartwright v. Bule, 3 Ir. C. L. R. 31); and see also Kidd v. Riddle, 1 Ir. C. L. R. 85, where the Court, under the 172nd G. O. of the 23rd Dec. 1850, allowed service of a scire facias upon a conusor absent in America to be substituted by serving his wife. So, also, where a joint judgment had been recovered against two conusors, the Court substituted service on one of the two joint conusors, the