(c) Of a sole defendant. 1. SIBBET V. RUSSELL. M. T. 1735. K. B. Ca. Temp. Hard. 183. S.P. allowed for Upon a motion to set aside a judgment and a scire facias thereon, The death of a the matter was referred to the master, who reported, that the declara- sole defendant tion was delivered the 9th of June, the rule to plead on the 13th, that before the time a summons had been taken out before a judge at his chambers on the pleading bas ex18th for time to plead to the 25th, but that in fact the defendant died pired abates the at Bath on the 18th, though the attornies knew nothing of it, and suit. therefore defendant's attorney did not plead within the time given, and on the 26th the plaintiff signed his judgment, and afterwards sued out a scire facias against the executors. Upon this report the judg ment and scire facias were set aside. And per Cur. Suppose there had been no further time given to plead, but, after the rule for pleading was out, defendant had died, and judgment had been signed after his death, surely that would not be a good judgment; the order for time to plead was never intended to bind the party, as if judgment had been signed on the day on which the rule for pleading was expired. The stat. 8 & 9 W. 3. c. 11. s. 6. will not vary the case at all. 2. ANON. M. T. 1706-7. K. B. 1 Salk. 8. 11; Mod. 137. by the name of Falmouth v. Strode, S. C. fore the actual In an action of ejectment the defendant died the day before the So will the commencement of the assizes; a verdict being found for the plain- death of a sole tiff, a motion was made on behalf of the defendant in arrest of defendant bejudgment. Per Cur. The death of either party before the assizes is commission not remedied by the statute 17 Car. 2. c. 8; but if the party dies after days of the the assizes have begun, although the trial be subsequent to his death, assizes, such a case is within the remedy of the act, for the assizes, in contemplation of law, are but one day. See Yelv. 152; Cro. Car. 509; 1 Sid. 131; 1 Leon. 278; 1 Mod. 6; Ca. Temp. Hard. 373; 3 Lev. 120; 6 Mod. 142; Raym. 210; 1 Lev. 279; 1 Vent. 235; And. 157; Com. Dig. Abatement, H. 34. 3. But if a defendant die after the first day of PLOMMER V. WEBB. M. T. 1729. K. B. 2 Lord Raym. 1415. n. S. P. JACOBS V. MINICONI. M. T. 1796. K. B. 7 T. R. 31. 32. note. Debt on bond, plea non est factum; verdict and judgment for the the assizes, plaintiffs; error assigned that Webb died before the day of nisi prius. though before Per Cur. This objection is not assignable for error, because the re- the hearing of cord alleges that the defendant appeared upon that day. Judgment the cause, affirmed. See 2 Tidd. Prac. 942. 7th ed.; et supra. or plaintiffs, against the surviving defendant or defendants." The preceding stat. it should seem, extends only to cases where the plaintiff dies pending the writ, and not to instances where one of several persons named as plaintiffs in the process was dead at the time the writ was sued out; in the latter case, the death would still be pleadable in abatement as at common law. Vide 20 H. 6. 30; 18 E. 4. 1; 2 H. 7. 16; Clift. Ent. 6; Ra. Ent. 126.; and post, Abatement, Pleas in, p. 10. suit does not abate; Though the 4. TAYLOR V. HARRIS. M. T. 1803. C. P. 3 B. & P. 549. Notice of trial had been given in this cause for the first sittings in Court of Com- Easter Term, and subsequently postponed to the second sittings. The defendant died on the night preceding the intended trial. A verdict was found for the plaintiff on the following day, and judgment regularly signed by the plaintiff, who had notice of the defendant's death. Rule nisi to set the judgment aside. mon Pleas set aside a verdict and judgment when the defendant had died be fore the actual day of sitting in term. Prior to the 8 & 9 W. 3. c. 11. the death of one of several co-trespassers before verdict abated the suit. Or of one of tractors. Per Cur. As the sittings in term neither commence with nor form any part of the term, but are only held on particular days appointed by the Chief Justice, a verdict obtained at them after the death of the defendant cannot be supported. R. Ab. See 2 Tidd. 942. 7th ed.; and 1 Leon. 278; Cro. Car. 509; 1 Sid. 231; 1 Burr. 363; 1 Vin. Ab. 55; Com. Dig. Abalement, H. 33. (d) Of one of several defendants. 1. ELLWAIES V. Lucy. M. T. K. B. 3 Salk. 117. Trespass against four defendants, who all appeared; but three of them after the last continuance pleaded that the other had died, et petunt judicium de brevi et quod breve prædict cassetur; upon demurrer to the plea, it was adjudged ill, because the defendants should have concluded et petunt judicium si curia ulterius procedere vult, for the writ actually abated by the death of the other defendants. See numerous other cases decided before the stat. 8 & 9 W. 3. c. 11. referred to in 1 Com. Dig. Abatement, H. 35; 1 Vin. Ab. 51 ; 1 Bac. Ab. Abatement, F. 8; Cro. Car. 509; And. 57. 58; Harris v. Phillips, M. T. 1659; Hardres, 161. cited per Lee, C. J. in Middleton v. Croft, Ca. Temp. Hard. 399. 2. WIRRAL V. BRAND. E. T. K. B. 1 Lev. 165; S. C. Raym. 131; 1 Keb. 906; 1 Sid. 259. Assumpsit against two executors on the promise of their testator, several co-con- plea non assumpsit; during the progress of the suit one of the defendants died, his death was duly suggested on the roll, and a verdict found for the plaintiff. On the Court being moved in arrest of judgment, they determined that the suit abated, and that the judgment should he stayed. See Woodward v. Davis, 1 Plowd. 186; et supra. This act provides that where there are two or more defendants, if one or more of them die, and the cause of action survive against the survivors, the action shall not thereby be abated, but, such death being suggested upon the record, the action shall proceed against the survivors. (As to entering the suggestion, see 1 Burr. 563; 5 T. R. 577 ; Barnes 469; 1 Stark. 511; and post tit. “Entry of Suggestions on the Roll.") If however, one of several persons, against whom an action purports to be brought, were dead at the time of suing out the process, this matter might still be pleaded in abate ment. (B) AFTER VERDICT, AND BEFORE FINAL JUDGMENT. 1. SMITH V. IRISH. M. T. 1669. K. B. 1 Mod. 4; S. C. 2. Keb. 548. Judgment had been entered as of Trinity Term; a writ inquiry was sued out returnable in M. T.; the plaintiff died in intermediate vacation. Per Cur. The first judgment being an interlocutory and not a judgment, the action abated by the plaintiff's death. of The death of the plaintiff be tween the day of nisi prius and final the day in bank will abate the See Burnet v. Holden, 1 Mod. 6; 2 Kel. 49; 1 Lev. 277; Ray, action.* 210; S. C. semb. contra, Comb. 293; Cro. Car. 509; 1 Keb. 477; 3 Keb. 160. 466; 3 T. R. 347; Com. Dig. Abatement, H. 33; 1 Bac. Ab. Abatement, H. 2. IRELAND V. CHAMPNEYS. E. T. 1813. C. P. 4 Taunt. 884. up After a writ of inquiry had been executed at the assizes in an An action for a action for a libel, the damages assessed, and before the next day in libel is abated bank, the plaintiff died. His executors nevertheless entered by the death of the plaintiff final judgment. A rule nisi was obtained to set the judgment aside. between interloPer Cur. The suit abated by the death of the plaintiff. R. Ab. See 17 Car. 2. c. 8. s. 1; 8 & 9 W. 3. c. 11. s. 6; 1 Taunt. 385. 7; Aid. 571; 1 B. Moore, 287. 3. cutory judgment and the next day in bank. After interlocu Berger v. GREEN. H. T. 1813. K. B. 1 M. & S. 229. Interlocutory judgment in an action on a bill of exchange had tory judgment has been signed, been signed on the 27th of January, the plaintiffs died on the 30th, the death of the and a rule to compute principal and interest was obtained on the 1st plaintiff in the of February. It was contended, that as these proceedings had been same term will had within the same term, that a scire facias was unnecessary, and not so abate the that when final judgment was signed it would relate back to the first suit as to preday of the term. In this opinion the Court concurred, and the rule to compute was made absolute. Chitty on Bills, 370. 6th edit.; 7 T. R. 20. 4. FORT V. OLIVER AND ANOTHER. H. T. 1813. K. B. 1 M. & S. 242. vent the Court from granting a rule to compute principal and interest on a bill of exchange. After outlawry defendants, and An action had been brought against two defendants, one of whom of one of two died after the other had been outlawed, and subsequent to interlocu- before final tory, but before final judgment. judgment, the Per Cur. These circumstances do not alter the right; it remains other dies, the as it originally stood. The plaintiff is entitled to proceed against right survives the survivor. The 17 Car. 2. c. 8. enacts, when either party dies between verdict and judg ment, "bis death shall not be alleged for error so as the judgment be entered within two terms after the verdict." By a subsequent statute, 9 W. 3. c. 118. s. 6. it is enacted, that in all actions to be commenced in any court of record, if the plaintiff or defendant happen to die after interlocutory and before final judgment, the action shall not abate by reason thereof, if such action might have been originally prosecuted or maintained by or against the executors or administrators of the party dying; but the plaintiff, or, if he be dead after such interlocutory judgment, his executors or administrators, shall and may have a scire facias against the defendant, if living after such interlocutory judgment, or, if he died after, then against his executors or administrators, to against the outlaw. The death of either party after final judgabate the suit. ment does not Actions qui tam do not abate by the death of the king. (C) AFTER FINAL JUDGMENT. CLERK V. WITHERS. M. T. 1703. 6 Mod. 290; S. C. 11 Mod. 34; Per Cur. The judgment must be affirmed. Executions are favoured in law, and the levy vests the property in the sheriff, and the act of selling is but a formal part of the execution, and therefore as the levy was complete in F. D.'s life-time, his subsequent death does not abate the writ. See Ld. Raym. 40; 12 Mod. 60. n; 1 Burr. 30; 17 Car. 2. c. 8; 1 Sid. 29; Cro. Car. 450; Dyer, 99; Moore, 778; Yelv. 44; 2 Saund. 47; 1 Vent. 52; 1 T. R. 658; 1 Mod. 30; 1 Sid. 438; 1 Lev. 282; Cro. Eliz. 319; Cro. Jac. 194; 1 Co. 96; Cro. Car. 459; 1 Salk. 320; 2 Saund. 344; 1 Leon. 304; Com. Rep. 34; 3 Salk. 159; 5 Mod. 176; 1 Salk. 320; 4 Bac. Ab. 460; 3 Com. Dig. 308; Vin. Abr. A. 2. pl. 18. (2 a. 2.) pl. 144. pl. 409; 2 Roll. Rep. 57; Noy. 73; 5 Co. 90; 1 Jones, 215; Hob. 10; 1 Keb. 313; 4 Mod. 404; 1 Roll. Abr. 893; Gilb. Ex. 22; Ra. Ent. 164; Godb. 276; 2 Keb. 789; 5 Mod. 384; 10 Mod. 412; Cro. Car. 381; Ld. Raym. 1051; 1 Mod. 34; 1 Salk. 323; 1 Salk. 264; Carth. 149. (E) BY THE DEATH OF THE KING.† 1. MEMORANDUM. C. P. 3 Lev. 207. It was resolved by the majority of the Court, that actions of debt upon penal statutes do not abate by the death of the king. See Cro. Car. 10; Hutt. 82. show cause why damages in such action should not be assessed and recovered by him or them. And by the same statute, if there be two or more plaintiffs or defendants, and one or more of them die, if the cause of action survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be thereby abated; but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs against the surviving defendant or defendants. See Wallop v. Irwin, 1 Wils. 315; Sibbet v. Russel, Ca. Temp. Hard. 183; 3 Mod. ,"" Scire 189. n. * Vide post, tit. "Executor and Administrator;" "Execution;" "Judgment:' facias;" and see 15 H. 7. 166; Fitz. Execution, 243; 1 Roll. Ab. 900. pl. 2; 2 Bac. Ab. Execution, G. 2; 6 Bac. Ab. scire facias, c. 4; 2 Ld. Ray. 808; 1 Salk. 314; 1 Show. 404; 2 Saund. 50. K; Cro. Eliz. 459; 1 Saund. 219. E. F; 1 Com. Dig. Abatement, H. 34. By stat. 1 Edw. 6. c. 7. it is enacted, that no action, suit, bill, or plaint, depending between party and party in any court of record, shall be discontinued, and 2. REX V. THEED. H. T. 1716. 1 Stra. 43. A scire facias had been brought to repeal the grant of a market; Or a writ of it was objected that as the writ had been sued out in the late queen's scire facias to repeal a grant. time, the proceedings had abated by her demise. But per Cur. This is an original writ, and within the general words of the statute 1 E. 6. c. 7. and 1 Ann. c. 8. and does not abate. See Com. Dig. Abatement, H. 38. 3. The KING V. POWELL. M. T. 1727. K. B. 13. 2 Stra. 782. In this case it was holden, that proceedings on an information in Or an informnature of a quo warranto, do not abate by the demise of the crown. ation in the See Rex v. Archbishop of Armagh, 2 Stra. 837; and post, tit. Quare nature of quo impedit. Abatement.—Pleas in.—In civil proceedings.* I. TO THE JURISDICTION—See tit. Jurisdiction, Pleas to; and tit. Ancient Demesne; Attorney; Cinque Ports; Conusance; Counties Palatine; Privilege. II. TO THE DISABILITY OF THE PERSON. III. TO THE COUNT OR DECLARATION, p. 19. put without delay, by reason of the death of the king, but the process, pleas, demurrers, and continuances, shall stand good in the same condition as if the king had lived. This statute, however, does not extend to actions in a county court, or other court of record, 7 Co. 30. b. nor did it extend to actions, &c. at the suit of the king, 7 Co. 31; 2 Cro. 14; until by stat. 1 Ann. c. 8. it was enacted, that no writ, plea, process, or other proceeding on any indictment or information, or for any debt to her Majesty, or her successors, shall be discontinued and put without delay by her or their death, but shall continue in force and be proceeded upon. And no original writ, writ of nisi prius, commission, process, or proceeding, out of any court of equity, or upon any office or inquisition, nor any writ of certiorari, or habeas corpus, in any case criminal and civil, nor any writ of attachment or process for contempt, shall be abated or discontinued by the death of the queen or her successors. * In Criminal Proceedings, vide post, p. 74. warranto. |