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discharge her ;(1) but the Court of Queen's Bench has in such cases discharged her. (2) An attachment against the wife for nonpayment of costs will not be granted.(3)

3. Marriage during Action.

Between writ and judgment.]—" The marriage of a woman plaintiff or defendant shall not cause the action to abate, but the action may, notwithstanding, 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, 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."(4)

After judgment.]—The above enactment applies only to the marriage, when it occurs between writ and judgment.(5)

If the feme has obtained the judgment before marriage, the husband may sue out a scire facias,(6) or revive the judgment by suing out a writ of revivor or entering a suggestion.() If after so reviving the judgment and issuing execution the wife die, the husband may take all further proceedings in his own name, (8) but he must first take out letters of administration.(9) If a judgment was obtained by the husband and wife for a debt due to her as executrix of D., and she die before execution, the executor or administrator of D. de bonis non, and not her executor, is entitled to a sci. fa.(10)

If the judgment is against the feme sole, and she then marries, a ca. sa. may nevertheless issue against her per

(1) Larkin v. Marshall, 1 L. M. & P. 186; 4 Exch. 804. (2) Edwards v. Martin, 2 L. M. & P. 669; 17 Q. B. 693. (3) Doe d. Allanson v. Caufield, 6 Dowl. 523.

(4) C. L. P. Act, 1852, s. 141.

(5) Morris v. Coates, 25 L. T. 176, 12th June, 1855. 7) C. L. P. Act, 1852, s. 132, post, "Sci. fa."

"Revivor."

(7) CL. P. Act, 1852, s. 129 et seq., post,
(*) Woodyer v. Gresham, 1 Salk. 110; Skin. 642.
(9) Betts v. Kimpton, 2 B. & Ad. 273.

sonally.(1) But before the husband can be subject to execution, the judgment must be revived against him.(3)

Form of Writ of Revivor against Husband and Wife, who Married before Judgment.

and C. his wife of the same

VICTORIA, &c., to E. F. of place, greeting: Whereas A. B. lately, and whilst you the said C. was sole and unmarried, impleaded and sued name of C. D., in our Court of afterwards and whilst the said action intermarried with the said E. the in our Court of said A. B. recovered in the said name of C. D., the sum of £

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you the said C., by your then in an action at his suit, and was pending you the said C. F., and afterwards, that is to say, on by the judgment of the said court the action against you, the said C., by the as by the information of the said A. B., in our said court, we are given to understand. And now on behalf of the said A. B., in our said court, we have been informed that, although judgment be given as aforesaid, yet execution of the said £ still remains to be made to him, wherefore the said A. B., having besought us to provide him a proper remedy in this behalf, we command you that within eight days after the service of this writ upon you, inclusive of the day of such service, you appear in our said Court of to show cause why A. B. should not recover against you the said £ by the judgment of the said court, and have execution against you of such judgment. And take notice, that in default of your so doing the said A. B. may proceed to execution. Witness, &c.

Form of Suggestion where a Wife Married after Judgment against her.

day of

And now, on the it is suggested and manifestly appears to the court that after the obtaining of the said judgment the said C. D. married E. F., and that the said A. B. is entitled to have execution of the judgment aforesaid against the said E. F. and C. his wife. Therefore it is considered by the court that the said A. B. ought to have execution of the said judgment against the said E. F. and C. his wife.

(1) Thorpe v. Argles, 1 D. & L. 831; see ante, p. 648.
(2) Bac. Abr." Sci. fa." 6; OBrien v. Ram, 1 Salk. 116.

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When to sue.]-The executors or administrators of a party may bring an action of assumpsit within the same period of limitation as the party himself could have done if alive, provided the right of action is one which survives; or where the period of limitation did not expire in the lifetime of the party, but within a year after the death, then the action may be brought any time within one year from the death.(1) Where, however, the cause of action accrues after the death of an intestate, but before administration, the period of limitation is counted from the date of administration, the statute not beginning to run till there is a party capable of suing.(2) Where the party died abroad, and the cause of action had accrued to him there, but he had never come to this country afterwards, the executor may sue any time during six years after the death. (3) Executors or administrators may also sue for trespass to their testator's goods done in his lifetime, within the same period as he could have sued if alive. (4) The personal estate of the deceased vests in the executor at the testator's death, and the title of the administrator relates back to the same date, when the letters of administration are taken out; and therefore they

(1) 2 Wms. Exec. 1601 (4th edit.)

(2) Murray v. East India Company, 5 B. & Ald. 204; Rhodes v. Smethurst, 4 M. & W. 42.

(3) Townsend v. Deacon, 3 Exch. 706.

(4) 4 Edw. 3, c. 7; Wilson v. Knubley, 7 East,'134; Doe d. Shore v. l'orter, 3 T. R. 13.

may maintain trespass or trover for his goods taken between the death and the grant of probate or of letters of administration.(1) This rule applies also to injuries done to leasehold property; but in that case the administrator. must first enter. (2) The doctrine of relation, by which the letters of administration are held to relate back to acts done before taking out the letters, exists only in those cases where the act done is for the benefit of the estate ;(3) but detinue cannot be maintained by an administrator against a person who has had possession of the goods of the intestate, but has ceased to hold them prior to the grant of administration.(*) Where, however, goods of an intestate were sold by a stranger to pay the debts of the former, the title of the administrator afterwards appointed was held to relate back so as to enable him to sue the stranger for money had and received.(5) Where an executor has allowed legacy duty to be unpaid, and the legatee to have possession of the subject matter of bequest for years, the executor, when called to pay increased duty, may recover the whole from the legatee as moneys paid to his use.(*)

When any injury is done to the real estate of the deceased within six months before his death, his executors or administrators may bring an action of trespass or case within a year after his death, provided he himself could have brought such action if alive. (')

In the case of the death of a person occasioned by the wrongful act, neglect, or default of another, where such person could have sued, if alive, for the same, the executor or administrator may sue, and must do so, within twelve calendar months after the death; and the plaintiff must with the declaration deliver a full particular of the persons on whose behalf the action is brought, and of the nature of the claim. (*) In such cases the negligence of the deceased must not have contributed to the accident.(°)

Co-executors, &c.]—Where there are several executors or

(1) Yorston v. Fether, 14 M. & W. 851; Welchman v. Sturgis, 13 Q. B. 552.

(2) Barnett v. Earl of Guildford, 11 Exch. 19.

(3) Morgan v. Thomas, 8 Exch. 302.

(4) Crossfield v. Such, 8 Exch. 825.

(5) Welchman v. Sturgis, 13 Q. B. 552.

(6) Bate v. Payne, 13 Q. B. 900.

(7) 3 & 4 Will. 4, c. 42, s. 2.

($) 9 & 10 Vict. c. 93 (Lord Campbell's Act)

(9) Thorogood v. Bryan, 8 C. B. 115. See a form of declaration in such cases, Dakin v. Brown, 8 C. B. 92.

administrators, all must join in suing, (1) though one executor only has proved the will() and the others have renounced probate.(3) Where, however, a contract has been made by one or some of the executors, not as representing the whole but in their personal character, then those who made the contract must alone sue.(*) Two of three coexecutors may recover in ejectment, on a demise in the names of both. (5) Where one of the co-executors or coadministrators dies, his representatives need not be joined.(") Where B., the sole executor of A., dies after having proved A.'s will, B.'s executor then may sue as representing A. ;() but if B. died intestate, or if B. was A.'s administrator, then on B.'s death an administrator de bonis non must be appointed to A.(')

The nonjoinder of co-executors or co-administrators must be taken advantage of by plea in abatement.() It is no answer to an action by several co-executors, that one of them had renounced the executorship, or never taken part in the administration.(10)

If the executor has been appointed by a Scotch or Irish court, he must also take out probate or letters of administration in the court here, before he can bring an action here. But where he has taken out probate here, the defendant cannot plead that the deed, on which the action is brought, was part of the goods to be administered in the foreign country, or in Ireland or Scotland.(")

Summons and capias.]-The writ of summons need not describe the plaintiff" as executor or administrator of," but if it does so, he cannot (without first amending) declare in his own right.(12) It seems also a writ of capias need not

(1) Brassington v. Ault, 2 Bing. 178; Com. Dig. Admin. (B. 12); Smith v. Smith, Yelv. 130.

(2) Webster v. Spencer, 3 B. & Ald. 363.

(3) Venables v. East India Company, 2 Exch, 633.

(4) Heath v. Chilton, 12 M. & W. 632; Brassington v. Ault,

2 Bing. 178; Turner v. Hardy, 9 M. & W. 770.

(") Doe d. Stace v. Wheeler, 15 M. & W. 623.

(*) Hudson v. Hudson, Cas. temp. Talb. 127; Jacomb v. Harwood,

2 Ves. 268.

(7) Wankford v. Wankford, 1 Salk. 308.

(*) 2 Bl. Com. 506; Elliot v. Kemp, 7 M. & W. 306.

(9) 1 Wms. Saund. 291; Tuckey v. Hawkins, 4 C. B. 655.

(19) Creswick v. Woodhead, 4 M. & Gr. 811; 5 Sc. N. R. 778.

(1) See Whyte v. Rose, 3 Q. B. 493.

(12) Douglas v. Irlaw, 8 T. R. 410; Anon. 1 Dowl. 97. See Free v. White, 1 Dowl. N. S. 586; and ante, p. 127.

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