Directory_and_Chronicle_1891 — Page 166

When Buit not abated.

When Caure of Astion survives.

When Cause of Action setraps to

Survivors, &c.

Death of sule Oz Burviving Plaintif

Dispute as to legal Re- presentative.

Death of one

of several Defendants or of a sole or surviving Defendant,

116

CODE OF CIVIL PROCEDURE-HONG KONG.

or with the consent of the plaintiff and such other party, dispose of the question between them in a summary manner. The sheriff may obtain relief under this section if the adverse claimants have given him notice of their claims, though none of them may have commenced proceedings.

Death of Parties.

XXI. The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survive.

2.-If there be two or more plaintiffs or defendants and one of them die, and if the cause of action survive to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, and against the surviving defendant or defendants.

3.-If there be two or more plaintiffs, and one of them die, and if the cause of action shall not survive to the surviving plaintiff or plaintiffs alone, but shall survive to them and the legal representative of the deceased plaintiff jointly, the Court may, on the application of the legal representa- tive of deceased plaintiff, enter the name of such representative in the register of the suit in the place of such deceased plaintiff and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, and such legal representative of the deceased plaintiff. If no application shall be made to the Court by any person claiming to be the legal representative of the deceased plaintiff, the suit shall proceed at the instance of the sur- viving plaintiff or plaintiffs; and the legal representative of the deceased plaintiff shall be interested in and shall be bound by the judgment given in the suit, in the same manner as if the suit had proceeded at his instance conjointly with the surviving plaintiff or plaintiffs.

4. In case of the death of a sole plaintiff, or sole surviving plaintiff, the Court may, on the application of the legal representative of such plaintiff, enter the name of such representative in the place of such plaintiff in the register of the suit, and the suit shall thereupon proceed; if no such application shall be made to the Court within what it may consider a reasonable time by any person claiming to be the legal representative of the deceased sole plaintiff or sole surviving plaintiff, it shall be competent to the Court to make an order that the suit shall abate, and to award to. the defendant the reasonable costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased sole plaintiff or surviving plaintiff; or the Court may, if it think proper, on the application of the defendant, and upon such terms as to costs as may seem fit, make such other order for bringing in the legal representative of the deceased sole plaintiff or surviving plaintiff, and for proceeding with the suit in order to a final determination of the matters in dispute, as may appear just and proper in the circumstance of the case.

5.-If any dispute arise as to who is the legal representative of a deceased plaintiff, it shall be competent to the Court either to stay the suit until the fact has been duly determined in another suit, or to decide at or before the hearing of the suit who shall be admitted to be legal representative for the purpose of prosecuting the suit.

6.—If there be two or more defendants, and one of them die, and the cause of action shall not survive against the surviving defendant or defendants alone, and also in case of the death of a sole defendant, or sole surviving defendant, where the action survives, the plaintiff may make an application to the Court, specifying the name, description, and place of abode of any person whom the plaintiff alleges to be tho legal representa- tive of such defendant, and whom he desires to be made the defendant in his stead; and the Court shall thereupon enter the name of such repre- sentative in the register of the suit in the place of such defendant, and shall issue an order to him to appear on a day to be therein mentioned to