Perine v. Babcock

6 Port. 391

Opinion

PER CURIAM.

The plaintiffs in error, and one Tilomas Morong, were the plaintiffs in execution, in .the-court below, and Morong having departed this life, after the determination of the suit, his survivors sued out the present writ of error, stating therein the death of Mo-rong.

A motion is now made, on behalf of the defendant in error, to dismiss the writ; and the case of Sewall vs. Bates,

Footnotes

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* is relied on, in support of the motion.

In cases which are not within the terms of the statute, providing the mode of .sucing out writs of error,† we conceive it to be our duty, so to mould the process, as to produce -the least inconvenience to parties; and unless come prejudice will result to parties, from such a course, it is always preferable that the writ should issue from the court helow, as delay must intervene in making the application to this court, for the writ of error.

In the present case, it is not seen how any inconvenience can arise, from permitting co-plaintiffs to suggest the death of one who was joined with them in interest, In the cause, onA when the suggestion of the death requires no new)pariies to be-made, in such a case it is the most convenient practice, to permit the caseto issue without application to this court; and .if the death is improperly (.suggested in the writ, it can always be under the control of the court, on a motion, supported by affidavit, so us to prevent any injury to the parties

If the writ issued in this case, was now dismissed, another would be awarded from this court, on the same facts having been suggestedbht this course we conceive to be unnecessary. The motion is denied.

3 Stewart 199.

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Dig. 256, sec. 13.