
    Isaiah Dubose v. Administrator of S. L. Dubose.
    Tlie order for judgment, indorsed by the clerk upon the record, is an “interlocutory judgment, ’ ’ as contemplated by the Act of 1746, ‘ ‘ for preventing the discontinuance of process and abatement of suits and, after such order had, an action within the provisions of that law will not abate by the death of a party.
    Before Evans, J., at Darlington, Pall Term, 1839.
    This was an assumpsit; in which, for default of appearance, the usual order for judgment'was indorsed upon the record. Very shortly after, the defendant died. Plaintiff then sued out a sci. fa. (under the Act of 1746, P. L. 212; 7 Stat. So. Ca. 191,) against his administrator, who also made default, and the case was put upon the inquiry docket. As no interlocutory judgment had been entered up, the Court was of opinion that this case was not saved by the Act, and, therefore, should abate by the defendant’s death.
    Whereupon the plaintiff appealed.
   Curia, per Evans, J.

At common law, the death of either party before-final judgment, abated the action. To remedy the inconvenience of this, our Act of 1746, provides “That, in all actions to be commenced in any Court of record in this Province after the passing of this Act, if any plaintiff shall happen to die after an interlocutory, and before a final judgment obtained therein, the said action shall not abate by reason thereof, if such action might be originally prosecuted by the executors and administrators of such plaintiff. And if the defendant die after such interlocutory judgment, and before final judgment obtained therein, the said action shall not abate, if such action might be originally prosecuted against the executors or administrators of such defendant.”

The next clause of the Act provides for the issuing of a sei. fa. to show cause why damages should not be assessed; and, if no cause be shown, then a writ of inquiry of damages shall be awarded, which being executed, final judgment shall be rendered for the plaintiff.

On the hearing of this case, I thought it not within the provisions of the Act, because no judgment had been entered up; upon further consideration, 1 am persuaded that my first impression was wrong, and in this opinion al my brethren concur. We conceive the interlocutory judgment, spoken of in this Act, to mean nothing more than the order for judgment, by default either of appearance or plea, which the clerk, according to our practice, makes on the back of the declaration. No judgment is ever entered up on this-; but the case goes upon the inquiry docket, whither it would have no right to go unless the order were, in fact, the judgment. The case of Kincaid v. Blake, in attachment, (1 Bailey, 20,) was decided on this principle; and the death of the defendant after the expiration of the rule to plead did not abate the suit. We are therefore of opinion that the appellant’s case did not abate by the death of the defendant, and that the plaintiff had a right to sue out a sci. fa. and to have his damages assessed, unless some good cause were shown to the contrary, according to the practice of the Court. ,

See Act of 1791, 7 Stat. 263, § 6; 2E & MoC. 549 ; 3 Sttob. 131. An.

The whole Court concurred.  