leaving a survivor or suvivors were provided for, but until the present Act was passed, there was no enactment providing for the case of the death of a sole plaintiff or defendant before a verdict or interlocutory judgment. The whole subject is now regulated by the above and the following sections of the present Act, and by section 93 of the Common Law Procedure Act of 1856. Sect. 156 provides for the case of the death of one or more of several plaintiffs or defendants leaving a survivor or survivors. Sects. 157 and 158, and sect. 93 of the Common Law Procedure Act, 1856, for the case of the death of a sole plaintiff or defendant, sect. 159 for the case of the death of a party between verdict and judgment, and sect. 160 for the case of death after interlocutory and before final judgment.

With the exception of cases where the party dies between verdict and When applifinal judgment, the provisions of the Act only apply where the right of action cable. survives, and accordingly, with the exception mentioned, the only case in which an executor can continue an action commenced by his testator, or in which an action can be continued against him, is where, if no action had been commenced in the lifetime of the testator, the executor might have maintained one against the defendant, or the plaintiff have maintained one against the defendant (Flinn v. Perkins, 32 L. J. Q. B. 10; Leitrim v. Maddison, Ir. R. 3 C. L. 601); and even in cases where the executor or administrator may bring an action under Lord Campbell's Act (9 & 10 Vict. c. 93), he cannot, except in cases within the 159th sect., continue proceedings already instituted by the testator. Notwithstanding, however, the rule of the Common Law just adverted Marking judgment to, that the proceedings in an action become abated by the death of either of after death. the parties, yet if judgment be signed and execution issued on the day of the death of the defendant, the judgment and execution are regular, even though the defendant died at an earlier period of the day than that at which th judgment was signed and execution issued (Wright v. Mills, 4 H. & N. 488), and the principle upon which that decision proceeded was stated to be that judicial proceedings are to be considered as taking place at the earliest period of the day on which they are done.

Again on the principle that "actus curiae nemini facit injuriam," the Court Judgment will, in general, permit a judgment to be entered nunc pro tune where the nunc pro signing of it has been delayed by the act of the Court or a Judge: that is to tunc. say, the Court will permit the judgment to be entered up as of the date when it might have been marked were it not for the act of the Court or Judge; and if the party were alive at that time the proceedings will be perfectly regular. Therefore, if a party die after special verdict, or after a special case has been stated for the opinion of the Court, Denison v. Holiday, 26 L.J. Ex. 227); or after a motion in arrest of judgment, or after a bill of exceptions has been taken, and the case has been placed in the list (Alford v. Beggs, 12 Ir. L. R. 528); or after a motion for a new trial, or after a demurrer set down for argument, the Court will, independent of the statutory enactments referred to, allow judgment to be entered up after his death nunc pro tunc. So also where the death has taken place pending the time taken for argument, or while the Court are considering of their judgment, or within a reasonable time after judgment is pronounced (Miles v. Bough, 3 D. & L. 105; Moor v. Roberts, 27 L. J. C. P. 161). But if the judgment was not entered up by reason of the laches of the plaintiff or those representing him, or by reason of a proceeding in the common course of law, the Court will not allow the judgment to be entered up nunc pro tunc (Miles v. Bough, 3 D. & L. 105, p. 108; Butes

v. Lockwood, 1 T. R. 637. Where, however, the Court allows judgment to be entered up in the manner mentioned, it is necessary that a representative of the deceased shall be brought before the Court, as the proceedings will not be allowed to go on in the absence of a responsible party, although it is not necessary that probate should be actually taken out (Wallace v. Brown, 4 Ir. Jur. N. S. 84; Thomas v. Dunn, 1 C. B. 139). And see further, as to entering judgment nunc pro tunc, s. 159, post, note (x).

In the cases mentioned the judgment is entered up in the name of or as against the deceased party. The usual proceedings will have to be then taken to revive.

In the case of an interlocutory order being made for the payment of costs to a party, who then dies, his personal representative is entitled to be paid the amount, notwithstanding the abatement of the action, and may obtain an attachment for the purpose of enforcing payment (Brownrigg v. Hamilton, Alc. & Nap. 170).

156. In case there be two or more plaintiffs or defendants, and one or more of them shall die, if the cause of action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the action shall not be thereby abated (m); but, such death being suggested upon the record (n), the action shall proceed at the suit of the surviving plaintiff or plaintiffs against the surviving defendant or defendants (0).

(m) This is substantially a re-enactment of the 9th Wm. 3, c. 10, s. 7, Ir. The words "if the cause of action shall survive, &c.," are not, however, to be found in that Act, although they do occur in the corresponding English Act, 8 & 9 Wm. 3, c. 11, s. 7, from which the above section is taken. Previous to those enactments the death of one or more of several plaintiffs or defendants pending the suit caused the action to abate. There were, however, some exceptions to this rule, as the death of one or more of several defendants in an action of tort, or of one or more of the plaintiffs in quare impedit or auditâ querela, did not cause the proceedings to abate, 2 Wms. Saund., 72 i, k.

The present section, as will be observed, is only applicable to cases where the right of action survives. As a general rule, when an action is brought by or against parties jointly, the right survives in the case of the death of one of them. However, in the case of an action brought by or against husband and wife in right of the wife, in case the wife should die the right does not survive (Checci v. Powell, 6 B. & C. 253); and consequently the action cannot be proceeded with by or against the husband under this section. On the other hand, if the husband should die the right survives to the wife (Sherrington v. Yeates, 12 M. & W. 855); and see s. 55, ante, p. 52.

(n) The suggestion mentioned in the text should be entered and filed before any further proceedings are taken (Pinkus v. Sturch, 5 C. B. 474 ; Larchin v. Buckle, i L. M. & P. 740). If the death happens before the settlement of issues it should be suggested upon the record (Far v. Den, 1 Burr. 362). If it happens after the settlement of issues it should also be suggested upon the record (Rex v. Cohen, 1 Stark, N. P. 511). In Bouhier v. Wood, Glasc. 75, where a co-plaintiff had died after action brought, and before issue joined, the Court allowed a suggestion to be entered on the record after verdict, on the principle that whilst a record of the Court remains there

it is amendable at the discretion of the Court. Compare with this, however, Barnewall v. Sutherland, 1 L. & M. 159, and mentioned in the note to the next section. In Whalley v. Lord Massareene, 9 Ir. Jur. N. S. 417, where a co-defendant died pending the argument of a bill of exceptions taken at the trial, and the plaintiff entered up judgment of venire de novo against all the defendants, the Court allowed the plaintiff to amend the record by suggesting the death of the co-defendant who had died. In Newnham v. Law, 5 T. R. 577, where one of two plaintiffs died before interlocutory judgment, and execution was issued in the name of both. the Court allowed a suggestion to be entered on the record and the execution to be amended.

tered with out leave.

It is unnecessary to apply to the Court for leave to enter a suggestion May be enunder this section, the 156th G. O. 1854, not being applicable (M'Mahon v. Ellis, 12 Ir. C. L. R. 437). The suggestion may also be entered by either plaintiff or defendant Pell v. Linnell, L. R. 3 C. P. 441): and it would appear that the suggestion when entered may be traversed, although suggestions under the 149th section are not traversable. The general rule applicable to suggestions, except where otherwise specially provided, is that after the entry of the suggestion the party sought to be affected may either demur or plead to the suggestion (Bartlett v. Pentland, 1 B. & Ad. 704. As to the consequences of the death occurring after service of notice of trial as affecting the costs of the day for not going to trial, see Pell v. Linnell, L. R. 3 C. P. 441, referred to, ante, p. 114.

As to the form of the suggestion see Chitty's Forms, 10th Ed. p. 876, et seq. and see also Bul. & Lea. Pr. Pl. 2nd Ed., p. 10.

entitled.

(0) After the death of a party the proceedings should be continued in the How cause names of the survivors, and so entered in the margin of the roll (Mahony v. Levis, 6 Ir. C. L. R. 475). The affidavits in the cause should of course be also entitled in the names of the survivors only (Larchin v. Buckle, 1 L. M. & P. 740).

Proceeding

in case of sole

16 Vict. c. 76,

s. 137.

157. In case of the death of a sole plaintiff or sole surviving plaintiff, the legal representative of such plaintiff plaintiff. 15 & may (p), by leave of a Court or a Judge, enter a suggestion of the death (q), and that he is such legal representative, and the action shall thereupon proceed; and if such suggestion be made before the trial the truth of the suggestion shall be tried thereat, together with the title of the deceased plaintiff, and such judgment shall follow upon the verdict in favour of or against the person making such suggestion as if he were originally the plaintiff (r).

cable where right sur

(p) The provisions of this section only extend to cases where the right Only appli of action survives (Flinn v. Perkins, 32 L. J. Q. B. 10, and Leitrim v. Maddison, Ir. R. 3 C. L. 601). It does not extend to proceedings by man- vives. damus where the prosecutor dies (Reg. v. Limerick & Waterford Railway Co., 4 Ir. C. L. R. 249); and in such a case it is necessary to issue a new mandamus. When the public officer of a company suing on its behalf dies a suggestion must be entered (Barnewall v. Sutherland, 1 L. M. & P. 159). Where a writ was issued in the name of a dead man, it was held the section did not apply, and that the action could not be continued in the name of the personal representative (Clay v. Oxford, L. R. 2 Ex. 54).

Entering suggestion.

When death occurs after verdict.

Costs of exe cutor where plaintiff.

(q) The Court of Queen's Bench held, in Mahony v. Levis, 6 Ir. C. L. R. 475, that the leave of the Court may be obtained upon an exparte application, and see M'Mahon v. Ellis, 12 Ir. C. L. R. 437. As to when and how the suggestion is to be made, see ante, section 156, note (n). There is, however, this distinction between entering a suggestion under that and under the present section; that a suggestion under that section may be entered without the leave of the Court, while a suggestion under the present section can only be entered after leave granted for the purpose. In Burnewall v. Sutherland, 1 L. M. & P. 159, the action had proceeded to trial in the name of a public officer substituted immediately before the trial in the place of one who had died, and whose death was suggested on the record, and the Court set the verdict aside, as the suggestion had been entered without the authority of the Court, and without an opportunity being given to the defendant to traverse the fact suggested. For the form of a suggestion under the present section see Chitty's Forms, 10th Ed., p. 878, et seq.; and Bul. & Lea. Pr. Pl. 2nd Ed., p. 13.

(r) When the death occurs after verdict or nonsuit and before final judgment, it will in general be unnecessary to enter a suggestion under this section, as judgment may be entered up in favour of the plaintiff under the 159th sect.; or if the signing of the judgment has been delayed in consequence of a point reserved, or from some other cause attributable to the Court or Judge, leave will be given to enter up a judgment nunc pro tune, ante, p. 181. If the plaintiff dies after verdict, and it becomes necessary to move for a new trial, an order will not be made until some representative of the deceased plaintiff is before the Court, but the Court will extend the time for moving in order to allow a representative to be brought before it (Moore v. Browne, 8 Ir. C. L. R. Ap. 25), and see post, s. 159, note (x). The present section of the Act only enables the personal representative of the deceased plaintiff to apply for leave to enter the suggestion. If, however, he does not choose to do so, the defendant may, under section 93 of the C. L. P. Act, 1856 (which see), call upon him to enter the suggestion, and in default of his so doing may enter a suggestion of the death of the plaintiff and of the representative character of the person against whom it is sought to enter the suggestion, and obtain judgment for the costs of the action and the suggestion.

It may be desirable to state here the rights and liabilities of a plaintiff executor as to costs. If the judgment be for the plaintiff, he is and always was entitled to costs as in ordinary cases. Previous to 3 & 4 Vict. c. 105, 8. 56, if the verdict was for the defendant, or in case of a nonsuit, the plaintiff was not liable to any costs unless the action was such as he might have brought in his personal capacity (Tidd's Pr. 5th Ed., p. 964). But he was liable to the costs of a non pros., or upon a discontinuance, or for not proceeding to trial if he had knowingly brought a wrong action or had been guilty of wilful default, otherwise not (Ib. 966, Har is v. Jones, 1 W. Bl. 451; Bennett v. Coker, 4 Burr. 1927); and now by the Act above referred to it is provided, that "in every action brought by any executor or administrator in right of the testator or intestate, such executor or administrator shall, unless the Court in which such action is brought, or a Judge of any of the said superior Courts, shall otherwise order, be liable to pay costs to the defendant in case of being nonsuited or a verdict passing against the plaintiff, and in all other cases in which he would be liable if such plaintiff were suing in his own right upon a cause of action accruing to himself; and the defendant

shall have judgment for such costs; and they shall be recovered in like manner." The application on behalf of an executor to be exempted from the payment of costs should be promptly made, while the facts are fresh in the recollection of the Judge who tried the case (Johnstone v. Cottingham, Jebb & B. 31). As a general rule, an order will not be made under this section depriving a defendant of his costs unless there has been misconduct upon bis part which led the plaintiff to proceed with the action, or some other very peculiar ground is laid for the interference of the Court (Martin v. Johnson, 2 Cr. & Dix, C. C. 464, Long. & Town. 633, Godson v. Freeman, 2 C. M. & R. 585). The discretion given to the Court or Judge applies only in cases where the executor was exempt previous to the Act, and whenever a defendant would have been entitled to costs previous to the Statute, he cannot now be deprived of them by the Court (Ashton v. Poynter, 1 C. M. & R. 738). As to the costs of a defendant executor see next section, note (w).

upon death

of sole or

sole surviv ing defend

17 Vict. c.

158. In case of the death of a sole defendant or sole sur- Proceeding viving defendant, where the action survives (8), the plaintiff may file a suggestion of the death, and that a person named therein is the executor or administrator of the deceased (t), aut. 15 & and may thereupon serve such executor or administrator with 76, 138. a copy of the summons and plaint and suggestion, and with a notice, signed by the plaintiff or his attorney, requiring such executor or administrator to file a defence within twelve days after service of the notice, inclusive of the day of such service, and that in default of his so doing the plaintiff may sign judgment against him as such executor or administrator (u); and the same proceedings may be had and taken thereon after such notice as upon a writ against such executor or administrator in respect of the cause for which the action was brought; and in case the plaintiff shall have issued his summons and plaint, but the defendant shall not have pleaded before the death, the new defendant shall plead at the same time to the summons and plaint and suggestion; and in case the defendant shall have pleaded before the death the new defendant shall be at liberty to plead to the suggestion only by way of denial, or such plea as may be appropriate to and rendered necessary by his character of executor or administrator (v), unless, by leave of the Court or a Judge, he should be permitted to plead fresh matter in answer to the summons and plaint, and in case the plaintiff shall recover he shall be entitled to the like judgment in respect of the debt or damages sought to be recovered, and in respect of the costs prior to the suggestion; and he shall be entitled in respect of the costs of the suggestion and subse