Green v. Watkins
Supreme Court of the United States
moved to dismiss the writ of error in this case, which was a real action, upon a suggestion of the death of the demandant and plaintiff in error, pending the proceedings in this Court.
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moved to dismiss the writ of error in this case, which was a real action, upon a suggestion of the death of the demandant and plaintiff in error, pending the proceedings in this Court. He insisted that, at common law, the death of either party, any time before final judgment, would have abated the suit;a that the judiciary act of 1789, c. 20. s. 31. made no provision for this case, since it merely extended to the case of the death of parties, in personal actions, before judgment ; and that the statute 17 Car. II. c. 8.. and the act of Kentucky, showed the sense of Parliament and the local…
1Opinion of the CourtJustice Story
The preliminary question which has been argued at the bar, is, whether the writ of error in this case, which is a writ of right, has abated by the death of the demandant, who is the plaintiff in error, pending the proceedings in this Court. There is a material distinction between the death of parties before judgment and after judgment, and while a writ of error-is depending. In the former case, all personal actions by the common law abate ; and it required the aid of some statute, like that of the thirty-first section of the Judiciary Act of 1789, ch. 20. to enable the action to be prosecuted…
2Cited by69 opinions
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