Lew v. Lee

Lew v. Lee

The personal representative may enter a suggestion of death and continue the appeal because the substantive cause of action before this Court is the right to have a trial judgment restored, which survives; the $490 special damages award was severable and must be restored; a new trial limited to reassessment of general damages may be ordered only if the defendant undertakes not to plead the plaintiff's death as extinguishing the cause of action, otherwise the appeal is allowed with costs and the trial judgment is restored in full.

Citation
[1924] SCR 612
Parties
Plaintiff Appellant: David Lew; Defendant Respondent: Wing Lee
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
19 November 1924
Procedural Posture
Malicious Prosecution (tort) / Appeal to the Supreme Court of Canada (revivor Motion and Merits)
Outcome
Appeal allowed in part: revivor of the appeal permitted; trial judgment restored for $490 special damages and costs; new trial limited to reassessment of general damages ordered only if defendant files a written election within one month undertaking not to plead plaintiff's death as extinguishing the cause of...
Legal Topics
Malicious Prosecution, Revivor, Actio Personalis Moritur Cum Persona, Excessive Jury Verdict, New Trial Conditional Undertaking, Merger of Cause of Action Into Judgment, Special and General Damages
Source Language
English
Tort Civil Procedure Appeals Probate/estate Malicious Prosecution Revivor Actio Personalis Moritur Cum Persona Excessive Jury Verdict +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 18 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

David Lew

Plaintiff Appellant

Wing Lee

Defendant Respondent

Procedural Posture

Malicious Prosecution (tort) / Appeal to the Supreme Court of Canada (revivor Motion and Merits)

Legal Issues

  1. 1 Whether the personal representative may continue an appeal after the plaintiff's death
  2. 2 Whether the plaintiff's right to have a trial judgment restored survives to the personal representative
  3. 3 Whether the trial judge could reduce a jury verdict to the amount claimed when the verdict was grossly excessive

Ratio Decidendi

The personal representative may enter a suggestion of death and continue the appeal because the substantive cause of action before this Court is the right to have a trial judgment restored, which survives; the $490 special damages award was severable and must be restored; a new trial limited to reassessment of general damages may be ordered only if the defendant undertakes not to plead the plaintiff's death as extinguishing the cause of action, otherwise the appeal is allowed with costs and the trial judgment is restored in full.

Court Disposition

Appeal allowed in part: revivor of the appeal permitted; trial judgment restored for $490 special damages and costs; new trial limited to reassessment of general damages ordered only if defendant files a written election within one month undertaking not to plead plaintiff's death as extinguishing the cause of...

Orders

  • Revivor of appeal allowed.
  • On proper suggestion being entered under rule 50 the appeal will be allowed with costs here and in the Court of Appeal and the judgment of the learned trial judge restored, unless the defendant elects by filing a written election with the registrar within one month for a new trial limited to a re-assessment of the...