CH. V.] Where the Death happens before Verdict. 181 It is not necessary that the judgment should be actually entered upon the roll within two terms after the verdict; if it be signed within that time, it will suffice (1). death of the defendant fore verdict 1. Where the death of the plaintiff or defendant happens before Where the verdict, and after the assizes begin.-It has been held, that the plaintiff or death of either party before the assizes is not remedied by the happens bestatute (m). But if the party die after the assizes begin, though and after the trial be after his death, that is within the remedy of the begin. statute; for the assizes are but one day in law, and this is a remedial law, and shall be construed favourably (n). Besides, it is to be remembered, that the cause might have been tried at any period after it had once been entered in the judge's cause paper. Nothing but the multiplicity of business prevented it from being tried on the first day of the sittings (0). All the verdicts, therefore, given in the course of an assizes have reference to the first day-or commission day; and this construction of the statute has always prevailed (p). And, even if a plaintiff or defendant died upon the commission day, though at one o'clock in the morning, it would be helped by the statute, which provides, that the death of either party after verdict shall not be a cause to reverse the judgment; for there can be no fraction of a day (q). If the lessor of the plaintiff in ejectment die after issue joined and before trial, or even after trial and before payment of costs, the defendant cannot recover his costs against the lessor's executor or administrator; for the consent rule was merely personal, to make the party liable to an attachment if he refused to pay the costs (r). For the same reason, if the lessor of the plaintiff die (1) Holie v. Baker, 1 Sid. 385; Webb v. Spurrell, Barnes, 261; 2 Saund. 72 m; Duke of Norfolk's case, 1 Salk. 401. (m) Taylor v. Harris, B. & P. 549. (n) Anon. 1 Salk. 8; Ejectment tried at Exeter; the defendant died the day before the assizes began, and upon trial on full evidence verdict was found for the plaintiff, and it was afterwards held as above on motion in arrest of judgment, 2 V. Wms. Saund. 72, n. ; Wms. on Exec. 4th ed. 761; Plower v. Webb, 2 Ld. Raym. 1415, n. (0) Per Lord Alvanley in Taylor v. Harris, 3 B. & P. 549. (p) Jacobs v. Miniconi, 7 T. R. 32. (r) Doe v. Grundy, 1 B. & C. 284; the assizes 182 Where the Death happens before Verdict. [BK. II. before the commission day of the assizes, and the plaintiff is nonsuited on account of the defendant's not confessing, &c., the executor or administrator of the lessor cannot recover any costs (t). But where a defendant died the night before the trial of a cause, at the sittings in Term, and the cause came on for trial, the verdict and the judgment entered up thereon were set aside, upon application to the Court (u). The sittings in Term are not regarded as one sitting in law, so that a trial at any sitting day would have relation to the first day of the sittings (x). It has, however, heen held in a later case, in which Taylor v. Harris was referred to, that all the causes that are tried by adjournment from the first day of a sittings in Term, are to be considered as tried on that day (y). Hence it follows, that if a plaintiff or defendant die after a sittings begin, and the cause be tried during those sittings, though after his death, the case is within the remedy of the statute (2). The judgment upon this statute is entered for or against the party, as if he were alive (a); and it should be entered, or at least, signed (6), within two terms after the verdict (c); for signing the judgment is an entering of it within the statute (d). The scire facias must pursue the judgment, and must recite it, as if it had been entered in the deceased party's lifetime (e), and must be in the same form as if he had died after the judgment. From these decisions, it follows, of course, if a plaintiff or defendant should die before the first day of the assizes or sittings, and before the cause has been entered for trial, that the old com (t) 2 Wils. 7; but where the husband and wife were lessors, and the husband died after entering into the rule, the wife was held liable for costs; Harrison, L. and T. 835, 3rd ed.; and costs taxed upon the common rule by consent have been ordered to be paid by the defendant to the representative of the lessor of the plaintiff, who died after trial, Barnes, 119. (u) Taylor v. Harris, 3 Bos. & Pul. 549. "The sittings in term neither commence with the term, nor are any part of the term, they are appointed at the discretion of the chief justice." (x) Johnson v. Budge, 3 Dowl. P. C. 207; Johnson v. Hamilton, 4 Dowl. 762. (y) Cheetham v. Shovenant, 12 M. & W. 515; and see Moon v. Robinson, 14 M. & W. 427. (z) 1 Wms. on Exec. 761, 4th ed. n. (a) Weston v. James, 1 Salk. 42; Colebeck v. Peck, Ld. Raym. 1280; 2 V. Wms. Saund, 72, n. ; Burnett v. Holden, executor, 1 Mod. 6; 2 Tidd's Prac. 8th ed. 1168. (b) Holie v. Baker, 1 Sid. 385; Webb v. Spurrell, Barnes, 261; Duke of Norfolk's case, 1 Salk. 401. (c) But see Chanvel v. Chimelli, 4 B. & Ad. 590; S. C., 1 Nev. & M. 731. (d) See note (), ante, page 181. (e) Colebeck v. Peck, 2 Ld. Raym. 1280; Burnett v. Holden, 1 Lev. 277; 1 Mod. 6; Saunders v. M'Gowran, 12 M. & W, 224, ante, note (a). CH. V.] On Death of Pltf. or Dft. after Verdict. mon-law rule prevails, and the suit would be thereby abated (e). Otherwise, not; and a scire facias would then be required by or against the personal representatives of the deceased plaintiff or defendant, to have execution of the judgment. 183 death of the defendant after ver fore judg. 2. Of cases where the death of the plaintiff, or defendant, has Where the occurred after verdict, and before judgment.-The intention of the plaintiff or statute (ƒ), it would appear from the cases which have been de- happens ⚫ cided upon it was, to make a verdict obtained against a party who dict and bedies before judgment is signed, (provided it be entered up within ment. two terms after the verdict, as directed by the Statute,) of the same effect in binding the goods and chattels of such defendant in the hands of his executor or administrator, and his lands in the hands of his heir, as if the judgment had been entered up in his lifetime. Thus, in Colebeck v. Peck (g), in which the plaintiff sued a scire facias against the defendant, as executor to T. S., on a judgment obtained by him against the testator, who died after the verdict, and before the judgment; the writ of scire facias being general, and supposing a judgment signed against the testator in his lifetime, was held on demurrer to be good. Parke, B., in speaking of this case, when cited in Saunders v. M'Gowran (h), says, it "seems to show, that a judgment against a party who has died after verdict, but before judgment, is to have the same effect as if the party had been alive. The rule there laid down is, that the plaintiff may enter up judgment in the cause, as if the party were alive." And in Saunders v. M'Gowran and another (h), where the plaintiff obtained a verdict, and M'Gowran having died before the judgment was entered, the judgment was entered up under the stat. 17 Car. II. c. 8, s. 1, and a scire facias was issued against the heir and terretenants of M'Gowran, that they might show cause why the damages, &c., should not be levied on their lands and tenements; it was contended, that the lands having descended to the heir before the judgment was signed, they were not bound by the judgment against the ancestor; but the Court held that, according to the case of Burnet v. Holden (i), goods and chattels were clearly bound by the judgment, and that by analogy it would bind in the case of land also (k). (e) And see ante, p. 182, n. (a); Taylor v. Harris, 3 B. & P. 549. (f) See the stat. cited ante, p. 180. (g) 2 Ld. Raym. 1280; Burnett v. Holden, 1 Lev. 227. (h) 12 M. & W. 224. (i) 1 Lev. 227; S. C. 1 Mod. 6. 184 Entering judgment nunc pro tunc. Entering Judgment nunc pro tunc. [BK. II. Where a plaintiff obtained a verdict at the Spring Assizes, and the defendant died afterwards on the 18th of April; the costs were taxed on the 21st, final judgment was signed on the 22nd, and a fi. fa. issued on the same day, tested on the first day of the term, without a previous scire facias having been issued; the Court refused to set aside the fi. fa. for the irregularity, the writ of fi. fa. being on the face of it regular. The objection should have been to the judgment (1). It has been already seen that the judgment must be entered, or at least signed within two terms after the verdict (m). Where there has been any delay in signing the judgment by an executor or administrator, not imputable to the laches of the party, but to the act of the Court, the Court will usually permit the judgment to be entered nunc pro tunc (n). The power of the Court to enter judgment nunc pro tunc does not, however, in any respect depend upon the statute 17 Car. II. c. 8. It is a power at common law, and by the ancient practice of the Court, to prevent an unjust prejudice to the suitor by the delay unavoidably arising from the act of the Court, and has been uniformly exercised, unless the delay is imputable to the laches of the party applying. The effect of the judgment, when entered, may depend on the statute 17 Car. II. c. 8; but the power to enter it does not (o). If, therefore, either party die after a special verdict, or a special case, and pending the decision thereon, or after a motion in arrest of judgment, or for a new trial, or pending the time that a demurrer is waiting for argument, or for the judgment of the Court, judgment may be entered at common law, after the death of such party, nunc pro tunc, as of the term in which the postea was returnable, or judgment would otherwise have been given; in order that the delay arising from the act of the Court may not turn to the prejudice of the party (p). So a judgment may be entered nunc pro tune without reference to the statute of Chas. II., where a verdict has been taken, subject to an award, lands are bound by the judgment in the (1) Watson v. Maskell, 2 Dowl. 810. (0) Evans v. Rees, 12 Ad. & El. 175. Chit. Arch. Prac. 8th ed. 1016; Tidd's CH. V.] Entering Judgment nunc pro tunc. and the award is made in the lifetime of the parties, but pending a rule to set aside the award, one of the parties dies (q). But at common law, a judgment cannot in any case be entered nunc pro tunc, unless the delay be attributable to the act of the Court (r); nor will the Court grant leave so to enter the judgment, except on that ground (8). By the rule of Hilary Term (Pleading Rules), 4 Will. IV. r. 3 (t), "All judgments, whether interlocutory or final, shall be entered of record of the day of the month and year, whether in term or vacation, when signed, and shall not have relation to any other day. Provided, that it shall be competent for the Court or a judge to order a judgment to be entered nunc pro tunc. But this rule only applies, as formerly, to the cases where the delay is occasioned by the act of the Court (u). The general rule is that judgment cannot be entered up against a party after his death; but where the parties have been delayed by the act of the Court, protection may be extended to them in consequence (x). Thus in Blewett v. Tregoning (y), where, after the plaintiff had obtained a verdict, the defendant obtained a rule nisi for a new trial, which, after the lapse of a year, was discharged, the defendant having died in the mean time, the Court ordered judgment to be entered nunc pro tunc, though more than two terms had elapsed since the discharge of the rule, it appearing that the delay was occasioned by the taxation of the costs, without any fault being imputable to the plaintiff (2). Where by the terms of a judge's order, made by consent, a plaintiff was to be at liberty to sign judgment for debt and costs on a particular day, but before that day the defendant died, the Court would not permit the plaintiff to enter judgment nunc pro tunc as of the day when the consent was given, as it would be in effect introducing a new term into the order, without the consent of one of the parties (a). The Court has no power to order rules made under the Interpleader Act (1 & 2 Will. IV. c. 58), to be entered up other than (q) Brydges v. Smith, 8 Bing. 29. (r) Lawrence v. Hodgson,1 Y. & J. 368; Lauman v. Lord Audley, 2 M. & W. 535. (8) Doe d. Taylor v. Crisp, 7 Dowl. 584; Blackburn v. Godrich, 9 Dowl. 337; 2 Chit. Arch. Prac. 8th ed. 1017. (t) Jervis's New Rules, p. 116. (u) Lauman v. Lord Audley, 2 M. & W. 535; Lambirth v. Barrington, 2 185 |