The present section, as may be observed, is confined to cases where the plaintiff becomes bankrupt or insolvent. The position of a plaintiff in case of the bankruptcy or insolvency of a defendant is referred to below.

The section only applies to cases where the bankruptcy or insolvency occurs pending the action (Stanton v. Collier, 3 E. & B. 274). If they have previously occurred, the defendant may plead them without applying to the Court, and the assignees will have to begin the action de novo (Swann v. Sutton, 10 A. & E. 623); in which case it was also held that such a defence is good if pleaded puis darrien continuance. The section is also apparently framed to meet the case of an action where there is a single plaintiff only. As to when assignees may join with other plaintiffs in suing, see Sherrington v. Yeates, 12 M. & W. 855; Heilbut v. Nevill, L. R. 5 C. P. 478).

In case the assignees elect to continue the action, they must proceed in the Continuing bankrupt's name to judgment; and where a plaintiff obtains an interlocutory assignees. the action by judgment, and then becomes a bankrupt, the assignees might even under the old practice mark judgment in the bankrupt's name (Bibbins v. Mantell, 2 Wils. 358). When judgment is marked, the assignees must make themselves parties to the judgment by suggestion or revivor, and an execution issued before that is done will be set aside (Carolan v. Nolan, 7 Ir. C. L. R. 114); but see Waugh v. Austin, 3 T. R. 437.

The question of what rights of action vest in the assignees is fully discussed in Drake v. Beckham, 2 H. L. C. 579, and Rogers v. Spence, 12 Cl. & F. 700; see, also, Crawford v. Cinnamond, Ir. R. 1 C. L. 325, and Hunter v. Hunter, Ir. R. 3 C. L. 138. Where the action is brought by husband and wife, and the husband becomes bankrupt, it would appear to be doubtful whether the action can be continued under the above section. See Sherrington v. Yeates, 12 M. & W. 855. When the bankrupt sues as a trustee for others, he will be ordered to give security for costs (Brady v. Hornsly, 3 Ir. Jur. O. S. 315).

As to the form of the order to be made under the above section, see M'Namara v. Lynch, 8 Ir. C. L. R. Ap. 11; Tierney v. Thomas, ib.; and see, also, Denston v. Ashton, L. R. 4 Q. B. 590.

What rights

vest in assig

nees.

(d) If the assignees decline to continue the action, the defendant may, in Pleading the case the cause of action has vested in the assignees, plead the bankruptcy or bankruptcy. insolvency, either as an orginal defence or as one puis darrein continuance. By the English practice the plaintiff on such a plea being pleaded, may discontinue, and becomes entitled to his costs: Reg. Gen. Pl. Trin. Term, 1853, rr. 22, 23. There is no corresponding rule in this country, and the plaintiff will not under such circumstances be entitled to costs (ante, p. 70, Littleton v. Cross, 4 B. & C. 117). By pleading such a defence the defendant waives his previous defences, (ante, p. 70, Barber v. Palmer, 1 Ld. Raym. 693).

In Outcherlony v. Gibson, 6 Sc. N. R. 577, the Court under peculiar circumstances stayed the proceedings after verdict upon payment of the costs incurred by plaintiff up to the time of his insolvency. And where the defendant obtained a judgment as in case of a nonsuit, the Court refused to Non-prossing discharge it, except on a peremptory undertaking and the payment of costs plaintiff. (Taylor v. Montague, 2 M. & W. 315). The practice in this country appears to have been that a defendant was not entitled to judgment, as in case of a nonsuit for not going to trial where a plaintiff became an insolvent, but the Court under such circumstances would allow a stet processus to be entered without costs, ante, p. 118.

Bankruptcy

If a defendant becomes a bankrupt or insolvent pending an action, and of defendant. obtains his certificate or discharge, he may plead it in bar to the action either

Cannot nonpros.

Arrest of judgment.

Upon motion

in arrest of judgment or

non obstante

veredicto, suggestion of

facts. 15 & 16 Vict. c. 76, s. 143.

originally or puis darrein continuance. In case of insolvency, a defence

of the defendant's discharge will not be good if the debt has been omitted from the schedule (Darley v. M'Donnell, Ir. R. 3 C. L. 260).

The plaintiff in such an action by proving his demand in bankruptcy waives the action without, however, becoming liable to costs, 20 & 21 Vict. c. 60, s. 262. It is not, however, a good equitable plea in bar to an action, that the defendant has been adjudicated a bankrupt, and that the plaintiff has proved under the bankruptcy (Spencer v. Demett, L. R. 1 Ex. 123). The Court will, however, in such a case stay further proceedings (Leeson v. Outhwaite, 2 Ir. L. T. 353, and see exparte Irving, Buck, 423).

The bankruptcy or insolvency of the defendant is good cause against a rule under the 106th section for not proceeding to trial. And the plaintiff will, under such circumstances be generally allowed to enter a stet processus (Sterne v. Sheane, 6 Ir. L. R. 25; Smith v. Davis, 2 Sc. N. R. 189). The same principle has been acted on in cases of interpleader, where the debtor had become bankrupt (M'Donnell v. Doherty, 15 Ir. C. L. R. Ap. 3).

With respect to the proceedings upon motions to arrest the judgment and for judgment non obstante veredicto (e):

163. No judgment shall be arrested, nor shall judgment be given non obstante veredicto, by reason of the non-averment of for judgment any alleged material fact or other cause, unless the party insisting on the objection shall satisfy the Court that there has been an omission of some substantial matter of fact whereby the said party may have been prejudiced in the merits of his case, and in such case the party whose pleading is alleged or adjudged to be therein defective may, by leave of the Court, suggest the existence of the omitted fact or facts, or other matter, which, if true, would remedy the alleged defect; and such suggestion may be pleaded to by the opposite party within eight days after notice thereof, or such time as the Court or a Judge may allow; and the proceeding to trial of any issue joined on such suggestion shall be the same as in an ordinary action (ƒ).

Arrest of judgment.

Judgment

non obstante veredicto.

What must be shown.

(e) A motion in arrest of judgment is a motion by an unsuccessful defendant after verdict, that the judgment for the plaintiff be arrested or withheld on the ground that there is some error appearing on the face of the record which vitiates the proceedings. If, on the other hand, the verdict be for the defendant the plaintiff may in certain cases move for judgment non obstante veredicto; that is, that judgment be given in his own favour without regard to the verdict obtained by the defendant. Inasmuch as when a motion to arrest a judgment or for judgment non obstante veredicto is made, the Court is called upon to enter the judgment of the Court in favour of a party who has failed in an issue of fact selected by or not objected to by

193.

himself it is necessary that it should be clearly established that the party making the application is entitled to the judgment of the Court. Accordingly, in such cases, it is not sufficient merely to show that the finding of the jury has been upon an immaterial issue; it is furthermore necessary to show that it appears from the record that the right of the cause is on the side of the applicant; and if the applicant complains of the non-averment of substantial matter of fact the opposite party may, under the above section, omitted fact. any Suggesting suggest such omitted fact. In point of fact as a general rule when motions of the description we are considering are made, it is necessary that the right of the applicant should, so to say, stand confessed upon the record; other- Repleader. wise the Court will award a repleader. Thus where an application was mide to arrest a judgment, and it appeared that the issue upon which the plaintiff had gone to trial and succeeded was an immaterial one, but there were other allegations in the plea upon which a material issue might have been framed, the Court refused to arrest the judgment, upon the ground that there were no materials before it upon which it could act, the finding upon the immaterial issue having decided nothing between the parties, and a repleader was accordingly awarded (Gordon v. Ellis, 2 D. & L. 308). In such cases as the one referred to, where the plaintiff succeeds upon the issue upon which he goes to trial he cannot be taken as confessing the truth of the material allegations in the plea or defence; for it is a rule of law that when there are several allegations in a pleading the truth of which is disputed, the opposite party may choose which he pleases and traverse it, and will not, by so doing, be taken as admitting the truth of the other allegations in case he succeeds upon the issue raised (Gordon v. Ellis, ubi supra, 318). If, however, he fails upon the issue raised he will be taken as indirectly admitting the truth of the other allegations (Boileau v. Rutlin, 2 Ex. 665); and a repleader will not accordingly be ever awarded in favour of a party who has made the first fault in pleading, and who fails upon the immaterial issue raised by himself (Kempe v. Crewes, 1 Ld. Raym. 167, 170).

Where, however, it appears, notwithstanding that the plaintiff has succeeded upon the issue raised, that he has got no cause of action, as for instance when the summons and plaint discloses no cause of action, or where by a replication bad in point of law he confesses the truth of a defence which affords a sufficient answer to the previous pleading, judgment will be arrested. So, also, will it be arrested when there is a misjoinder of counts (Corner v. Shew, 4 M. & W. 163; Kitchenman v. Skeel, 3 Ex. 49); and where the plaintiff declared for procuring his apprentice to depart from his service, and for the loss of his service during the whole residue of the term of his apprenticeship, and the jury assessed damages generally, judgment was arrested because it appeared that the term was not expired (Hambleton v. Vere, 2 Wms. Saund., 169). Where, however, some of the counts in the summons and plaint are good and some bad, and general damages are given, the Court will not arrest the judgment, but will award a venire de n vo (Ayrey v. Fearnsides, 4 M. & W. 168; Empson v. Griffin, 11 A. & E. 186); and see Jones v. M'Govern, Ir. R. 1 C. L. 681, referred to ante, p. 142, whence it will appear that, in such cases, the plaintiff may, under certain circumstances, be allowed to enter up judgment.

When judg ment will be arrested.

The principles upon which the Court acts when a plaintiff applies for leave to enter up a judgment non obstante veredicto, are similar to those acted upon on obstante Judgment in motions in arrest of judgment. It is necessary that the cause of action veredicto. should be confessed upon the record, and the plaintiff must therefore show

that both the issue upon which the defendant has succeeded is immaterial, and, also, that the defendant has, either by the pleading upon which that issue has arisen (Pim v. Grazebrook, 2 C. B. 429), or otherwise, confessed the cause of action; and if such confession does not appear, the Court will award a repleader. Thus, a motion for judgment non obstante veredicto was refused, when the defendant traversed two immaterial allegations in the declaration upon which he succeeded, leaving unanswered a material allegation; and the principle upon which the decision proceeded was, that the pleas being merely traverses, contained no more than a conditional admission of the allegation not traversed, that was to say, in case the plaintiff proved the allegations traversed (Rutland v. Bagshaw, 19 L. J. Q. B. 234); and see Gwynne v. Burnell, 6 Bing., N. C. 453; and Atkinson v. Davies, 11 M. & W. 236. Where, however, the plea on which the immaterial issue was framed, was one in confession and avoidance; or even though not in confession and avoidance, where there were other pleas upon the record, upon which good issues were framed, and which other pleas were either in confession and avoidance, or by way of traverse, and which the defendant failed in proving, the Court allowed judgment non obstante veredicto to be entered (Couling v. Coxe, 6 C. B. 703; Goodburne v. Bowman, 9 Bing. 532); and see further as to when judgment will be awarded, and in what cases a repleader will be ordered, 2 Wms. Saund., 319 1. et seq.

A motion in arrest of judgment, or for judgment non obstante veredicto, cannot be made after judgment upon demurrer (Edwards v. Blount, 1 Str. 426, Cresswell v. Packham, 6 Taunt. 650; Willoughby v. Willoughby, 6 Q. B. 722); but it may be made after a judgment by default (Edwards v. Blunt, ubi supra). Where a bill of exceptions has been tendered in a cause, a motion in arrest of judgment will not be permitted to be made unless the exceptions are abandoned (Richardson v. Corcoran, 7 Ir. C. L. R. 121); neither will a party be allowed to impeach the pleadings of the opposite side upon a motion for a new trial (Lysaght v. Delacour, 8 Ir. C. L. R. 453). When the facts which appear upon the record are proved, the Judge at the trial ought not to nonsuit on account of any defect in the pleading; the proper course being to move in arrest of judgment, or for judgment non obstante (Keenan v. Phillips, 5 Ir. L. R. 440).

By the 88th and 89th General Orders, 1854, when any party shall seek to move in arrest of judgment, he shall, in the first instance, apply to the Court by motion without notice, and every application in arrest of judgment must be made within the first four days of the term next after the trial, if had either in the sittings after term or at the assizes, or within the first four sitting days after the trial if had in term. As to extending the time tor moving, see Harrison v. Great Northern Railway Co., 11 C. B. 42. As to the costs of the parties in case of a motion in arrest of judgment, or for judgment non obstante veredicto, see post, sects. 164, 165.

A rule for judgment non obstante veredicto ought to be drawn up "upon reading the record" (Beaty v. Warren, 4 M. & G. 158).

(ƒ) In order to entitle a party to enter a suggestion under this section, the truth of the facts proposed to be suggested, must be clearly and satisfactorily shown by affidavit (Manley v. Boycot, 2 E. & B. 46; Fisher v. Bridges, 2 E. & B. 118, 128).

164. If the fact suggested be admitted or found to be true, the party suggesting shall be entitled to the like judgment

as he would have been entitled to if such facts or allegations had been originally stated in the pleading, and proved or admitted at the trial, together with the costs of and occasioned by the suggestion and proceeding thereon; but if such fact or facts be found to be untrue, the opposite party shall be entitled to his costs of and occasioned by the suggestion and proceeding thereon, in addition to any other costs to which he may be entitled (g).

(9) As to the costs in such cases, see the note to the next section.

165. Upon an arrest of judgment, or judgment non obstante veredicto, the Court shall adjudge to the party against whom such judgment is given the costs occasioned by the trial of any issues of fact arising out of the pleading for defect of which such judgment is given upon which such party shall have succeeded; and such costs shall be set off against any money or costs adjudged to the opposite party, and execution may issue for the balance, if any (k).

(h) Formerly the rule upon a motion in arrest of judgment was, that if Costs. the judgment was arrested, both parties bore their own costs (Cameron v. Reynolds, 1 Cowp. 403, 407). The plaintiff got no costs, because he did not succeed, and the defendant got none, because the case was not within any of the Statutes giving costs (Gray on Costs, p. 389); and the rule is still the same (Whaley v. Laing, 5 H. & N. 480), with the exception above introduced, viz.: that the plaintiff is entitled to the costs occasioned by the trial of the issues arising out of the defective pleading. Upon a motion for judgment non obstante veredicto, if the plaintiff succeeded he was not entitled to any costs incurred subsequent to the bad plea, and before signing judgment, inasmuch as such costs were unnecessarily incurred (Gray on Costs, p. 393; Goodburne v. Bowman, 2 Dowl. 206). By the above sections, the defendant in such cases is now entitled to the costs occasioned by the trial of the issue of fact arising out of the defective pleading. When the plaintiff fails in his motion, the defendant is entitled to the costs of showing cause as part of his costs in the cause (Hodgkinson v. Wyatt, 1 D. & L. 668).

With respect to proceedings in error (i):

166. No judgment in any action shall be reversed or avoided for any error or defect therein, unless the proceedings in error be commenced, or brought and prosecuted with effect, within six years after such judgment signed or entered of record, or within six years after the time when this Act shall have come into operation (j).

(i) Error, as has been laid down (Co. Lit. 288, b.), lies whenever a person When error is aggrieved by an error in the foundation, proceeding, judgment, or execution lies.