Charles A. Turner, Kt., C.J.
1. The appeal was filed on the 26th January 1881. The respondent died after service on the 17th April 1881. The sixty days from the death of the respondent allowed for an application to substitute the representative expired after the Court had risen for the vacation.
2. The Court re-opened on 5th July. Before an order was passed declaring the appeal had abated, the appellant applied on the 11th July that a representative should be substituted. On the 12th December the Court passed an order declaring the appeal had abated as no application had been made within sixty days from the death of the deceased. On the 30th January 1882 the present application was presented under Section 371, Civil Procedure Code. The application was therefore presented within sixty days from the date of the order declaring that the appeal had abated. As the law stood on the date the order was passed, the Court could not take notice of the sufficiency of the excuse made by the appellant till it had pronounced an order declaring the abatement.
3. Section 37.1 does not apply to a case in which a defendant or respondent has died, but to the case only in which the plaintiff or appellant has died, or become insolvent and there seems to be reason for this. The order of abatement would be made in Court: it would be the duty of the plaintiff, appellant, to be present when the order was made, and to show cause against it. If he could show such cause as the Court could take cognizance of, the order would not be made. Under the law as it stood before the Act of 1882, he could only show that the application had been made within the time limited. The amended Act more reasonably allows him to plead sufficient cause to excuse the delay.
4. We have to dispose of this application under the law as it stood when the application was presented, and we must hold that it was not competent to the petitioner to prefer it.
5. The application is dismissed with costs.