damages demanded in the conclusion of the declaration exceed that sum ; but in ordinary cases, where upon the face of the declaration, the sum in demand is uncertain, and may exceed the sum of two hundred and fifty dollars, the amount stated in the conclusion of the declaration must be considered as the test of the plaintiff's demand, and the writ must be obeyed. 19

clerk.

Return of writ and proceedings in supreme court.] The Duty of clerk of the court, to which the certiorari is directed, must return the same, and annex thereto a copy of all the pleadings and proceedings in such action.20 For these copies, and for filing the writ, the clerk is entitled to fees;21 but it seems that he cannot refuse to obey the writ, under pretence of not being paid his fees, but that he must seek his remedy by action.22

If a record be brought up by certiorari and filed, it can never be remanded or sent back to the court, either in the term in which it is filed, or any other; and therefore if the plaintiff intend to move for a procedendo, which is a writ issuing out Procedende, of the superior court, directed to the judges of the inferior court, commanding them to proceed in the cause, notwithstanding the writ before delivered to them,23 he must make the application on the return of the certiorari, and before it is filed.24

The statute provides, that a return to the certiorari may be compelled by the supreme court, and, that "upon the same being made, the like proceedings shall be had in such cause, as if the same had been commenced in the supreme court. If Proceedings it be removed before a declaration filed, the plaintiff shall de- cour clare, and the defendant shall plead thereto; if it be removed

in supreme

Bail; evidence.

after a declaration filed, and before any plea, the defendant shall plead within the same time in which he was required to plead in the court from which the cause was removed, unless such time be enlarged by the supreme court or a justice thereof; if the defendant's default shall have been entered, the plaintiff shall be entitled to interlocutory judgment, and to have his damages assessed, unless such default be set aside by the supreme court; and all the said proceedings shall be had in the same manner as if such cause had been originally commenced in the supreme court."25

The bail given in such action are responsible, and may be relieved, exonerated, and discharged, in the same manner and in the same cases, as if such action had been commenced in the supreme court.26 And evidence taken by virtue of any commission, or conditionally in any cause, before the removal thereof, may be used on the trial of such cause, in the same manner, and with the like effect, as the same might have been used in the court from which such cause was removed.27

25 R. St. P. 3. Ch. 7. T. 2. s. 11. Vol. 2. p. 390.

26 Ib. s. 12.

27 Ib. s. 13. As to plaintiff's costs where cause is removed, see ante, Vol. 1. p. 574.

CHAPTER XV.

OF THE ABATEMENT OF SUITS BY DEATH, MARRIAGE, OR OTHERWISE.

At common law, the death of a sole plaintiff or defendant before final judgment, would have abated the suit: but as the judgment relates to the first day of the term, if the party were alive after that day, it might have been entered and the costs taxed thereon after his death-1 And so in all actions where there were one or more plaintiffs or defendants, the death of one of such plaintiffs or defendants, before final judgment, in general abated the action.2

The following statutory provisions essentially alter the common law rule on this subject:

of several

defendants.

"If in any action there be two or more plaintiffs, and one Death of one or more of them shall die before verdict is rendered, or inter- plaintiffs or locutory or other judgment obtained; or between the time of verdict being rendered and judgment thereon; the action shall not be thereby abated, if the cause of such action survive to the surviving plaintiff or plaintiffs; and where there are two or more defendants in any action, and one or more of them shall die before final judgment, such action shall not be thereby abated ; but in either of the said cases, such death shall be suggested on the record, and the action shall proceed at the suit of the

1

965.

1 Kenyon, 378. 2 Tidd. Pract.

2 2 Saund. 72. i. Gilb. C. P. 242. 1 Chitty on Plead. 55. Cas. temp. Hardw. 399.

surviving plaintiff, or against the surviving defendant, as the case may require."

"When there is but one plaintiff in an action, if he shall die after interlocutory judgment, and before a final judgment obtained thereon, such action shall not abate by reason thereof, if it might be originally prosecuted by the executors or administrators of such plaintiff'; and such executors or administrators may have a scire facias against the defendant, to show cause why the damages in such action should not be assessed and recovered."4

"In actions where there is but one defendant, if he shall die after interlocutory judgment, and before a final judgment obtained thereon, such action shall not abate by reason of such death, if it might be originally brought against the executors of such defendant; but the plaintiff may have a scire facias against the executors or administrators of such defendant, to show cause why the damages in such action should not be assessed and recovered, and the judgment therein shall be against such executors or administrators." 115

In an action by husband and wife, if the husband die pending the suit, but the cause of action survives to the wife, it will not abate, and the wife may proceed to judgment and execution, the death of the husband being suggested upon the record. But in an action against husband and wife, for a contract of the wife, dum sola, the cause of action does not survive against the husband; and consequently the death of the wife, pendente lite, abates the suit."

If a defendant be sentenced to the state prison for life, he is considered as civilly dead, and the suit abates.9

verdict or

It is likewise provided by statute, that "after a verdict shall Death after be rendered in any action, and after a plea of confession in a confession. suit brought, if either party die before judgment be actually entered thereon, the court may, within two terms after such verdict or plea, enter final judgment in the names of the original parties."'10

On a similar provision in a former statute it was held, that a verdict was good when the party died after the commencement of the assizes or circuit, though before the trial; for the assizes are considered as but one day in law." But it is now provided in a subsequent section of the revised statutes, that "nothing herein contained shall be construed to authorize the entry of a judgment against any party who shall have died before a verdict actually rendered against him, notwithstanding he may have died on the first or any other day of the term or sitting of the court, at which such verdict shall have been taken ; but such verdict shall be absolutely void."12

In relation to suits commenced by or against executors and administrators, the revised statutes contain the following pro

visions:

of executor

"No suit that may have been commenced by any executors Death, &c. or administrators, who shall die, be removed, or superseded, plaintiff. or who shall become incapable of acting, shall be abated thereby, but may be continued by the co-executor or administrator, if there be any, and if there be none, by and in the name of the person who shall succeed the executor or administrator dying, removed, superseded, or becoming incapable, in the administration of the same estate."'18

executor de

"If an executor or administrator be defendant in a suit, Removal of pending at the time of the revocation or superseding of his fendant.

1 R. St. ib. s. 4.

12 Ib. s. 5.

13 R. St. P. 2. Ch. 6. T. 5. s. 14. Vol. 2. p. 115.