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said, shall, upon motion to the court where the suit is depend- CHAP. 2. ing, be entitled to a continuance of the same until the next term of the said court. And if there be two or more plaintiffs, or defendants, and one or more of them shall die, if the cause of action shall survive to the remaining plaintiffs, or against the surviving defendant or defendants, the suit or action shall not be thereby abated: but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs, against the surviving defendant or defendants."

Several important decisions have been made relative to the construction of this section, and the practice under it, which it is proper here to state.

The section extends only to personal actions. When in a writ of right, therefore, the defendant died, without having appeared, it was held that the court had no authority to make the heirs parties; and also that a writ of error would lie, upon this ground, to reverse a judgment entered against them by default for want of a plea, in the original action, after having been made parties by rule of court. 7 Wheat., 530. See, also, 6 Wheat., 260.

The executor or administrator is entitled to come in, instanter, and make himself a party, upon motion. 3 Cranch, 193, 206. If upon application for this purpose, his representative character is contested, he must establish it by the production of his letters testamentary, or of administration; but after the order for his admission as a party, it is too late to question his right of representation. If the executor or administrator of the deceased party omits, voluntarily to make himself a party, the surviving party is then entitled to a scire facias against him to enable the court "to render judgment against the estate of the deceased party, in the same manner as if the 'Ch. 20 : 1 Stat. at Large, p. 73.

PART 2. executor or administrator had voluntarily made himself a party in the suit." The right to a continuance to the next term is given to the executor or administrator for the purpose of affording him time to prepare for the proper management of the suit, and does not extend to the other party. See, also, 1 Paine, 483.

In the case of McCoul v. Lekamp's administratrix (2 Wheat., 111), the plaintiff having died after issue joined, his administratrix resorted to a proceeding by scire facias for the removal of the action. While the suit was pending, the administratrix married; which fact being pleaded, puis darrien continuance, the suit was held, upon common law principles, to have abated. A new scire facias was then sued out in the name of the administratrix and her husband, &c., and a recovery was obtained in the original suit. Upon error to reverse this judgment, one of the questions was, whether the second scire facias was authorized by the above recited section of the judicial act; and it was held that the abatement of the first scire facias did not in any manner affect the original suit; but that after such abatement, the administratrix, together with her husband, had the same right to institute a new proceeding by scire facias, as she alone, while sole, had to institute the first.

In the case of Hatch v. Eustis (1 Gall., 160), the defendant having died after verdict and before judgment his administrator was brought in by scire facias; and a judgment passed in favor of the plaintiff. Upon this judgment an execution was issued and returned nulla bona testatoris. Afterwards a scire facias was brought to revive the judgment against the administrator. Held, that the defendant was not precluded from pleading no assets. The court also took occasion to express strong doubts, whether, before issuing

his execution upon the original judgment, the plain- CHAP. 2. tiff ought not to have sued out a second scire facias, to afford the administrator an opportunity to plead the want of assets or other matter of defense, which an executor may plead to a scire facias brought upon a final judgment against his testator.

3. Security for costs.

In the circuit court for the southern district of New York, this subject is regulated by rule, as follows:

"If the plaintiff, at the commencement of the action be, or pending the same, become a non-resident of the state, or if on demand in writing by the defendant's attorney, notice in writing of his residence shall not be given, the defendant may, on proof of such non-residence, or failure, enter a rule of course, that the plaintiff give security for the defendant's costs, within ten days after service of a notice of the rule, or be non-prossed, which security shall be a bond filed in the clerk's office, duly executed by some sufficient person residing within the district, to the defendant, in the penalty of one hundred dollars (unless a larger penalty shall be directed by the court), with a condition that if the plaintiff shall discontinue his action, or if it be dismissed or non-prossed, or judgment pass against him therein, he shall pay all such costs as shall be adjudged or awarded against him in such action. And the sufficiency of the said security may be excepted to, and such security shall justify before the clerk, within the respective periods, and in like manner as is the practice with respect to special bail. And on failure of giving such security, or in default of such justification, and on due proof of the service of notice of such rule, and of any such default, a judgment of non-pros may be entered.

PART 2.

"When a suit shall be commenced for any such non-resident, and, also, when at any time pending the action, the plaintiff shall remove out of the district,' and the attorney shall thereafter proceed in such suit, without such security being given, he shall, in either case, be deemed to have become security for costs to an amount not exceeding one hundred dollars. Provided that this rule shall not apply where one of several plaintiffs resides within the district."

By a rule of the district court of the northern district of New York, which is also the rule of the circuit court, the provisions relative to this subject contained in the Revised Statutes of New York, are expressly adopted."

4. Notices to the adverse party-Service thereof-Agents. In the national courts for the two districts of New York, these subjects are regulated by rules of court; and it is presumed also in the courts for the other districts of the union.

The rules of the courts for the southern district are too numerous for insertion here. For those of the courts for the northern district of New York, see Appendix.

The rules of the courts for the southern district, authorize a service upon the agent, or where none has been appointed, by affixing in the clerk's office in all cases in which the attorney, &c., of the adverse party does not reside in the city of New York. By the rule of the district court for the northern district, such service is permitted only when the attorneys, &c.,

'There is, it will be perceived, an incongruity in these rules, in first providing for the case of non-residence within the State, and afterwards within the district.

'Appendix, Rule 64.

of the adverse party do not reside within forty miles CHAP. 2. from each other.1

By the rules of the courts for the southern district, service may be made upon a party who prosecutes or defends in person, unless he is an attorney of the court residing in the city of New York, by affixing the notice in the clerk's office.

The rule of the district court for the northern district requires, in such case, either a personal service, or a transmission by mail; or, under certain circumstances, a delivery to the jailer, or the sheriff, or one of his deputies; in conformity with the practice of the supreme court of the state."

5. Affidavits.

Affidavits to be read in the courts of the United States, can be regularly taken only before either a judge of the United States, or a commissioner appointed for that purpose by the court, in pursuance of the acts of congress.

SECTION X.

OF THE REMOVAL OF CAUSES FROM THE STATE COURTS.

The twelfth section of the judiciary act, providing for the removal of causes from the state to the national courts, has already been recited, and the provisions made by the acts of March 2, 1833, ch. 57, and March 3, 1863, ch. 81, for the like removal of other descriptions of causes, have already been summarily stated in the first part of this work. There are not, to my knowledge, any reported judicial decisions in cases arising under either of these two latter acts. The regulations they prescribe, for the purpose of insuring their efficiency, are special and minute, and I propose to leave them to speak for Appendix, Rule 5. 'Appendix, Rule 10.

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