English v. Andrews

4 Port. 319

Opinion

GOLDTiiWAITE, X

— The death of the plaintiff in error was suggested at the last term of this Court, andno personal representatives have made themselves parties to the suit.

It is now moved by the defendant in error to abate the suit, and to render judgment against the securities on the writ of error bond.

The suit musí ¡be abated on the authority of the case of Evans vs Boggs et al.* but the Court does not think that it is authorised to render a judgment against the securities on the writ of error bond.

The act of eighteen hundred and fifteen,† provides, “ that in case of dismission or discontinuance of the cause, the Supreme Court shall render judg ment against the principal and security.” And the act of eighteen hundred and twenty-six,* provides for cases of affirmance, and for cases in which judgments shall be rendered against the plaintiffs in error.

The case of an abatement of a suit does not seem to be provided for, by either of these statutes. The latter part of the motion is consequently denied.

Footnotes

*

Minor's k 354-

†

Aflc. Dig.

*

Aik. Dig.