Price's Adm'r v. Tyson's Adm'rs , 2 G. & J. 475 ( 1830 )

Earle, J.

delivered the opinion of the Court.

Harford County Court decided this case against the plaintiff below, on a general demurrer to a plea in abatement, and, in our opinion, decided it erroneously. The Court went upon the ground, that both the plaintiff and defendant being dead, at the time of the suggestion, parties could not be made under the Act of 1785, ch. 80. ■

We think the parties were properly made, notwithstanding this circumstance, although the time of making them was not strictly regular. The cause stood in the name of John Price, against Nathan Tyson, and had been referred by consent of parties, and rule of Court, and long continued on the reference docket, waiting the return of the award, before the first'suggestion was made. It was made at March term, 1823, while the case was still depending on the reference docket of the Court, and this is the irregularity which we should not have sanctioned. The 11th section of the act is positive, that a case referred, shall be continued, until an award is returned and a suggestion that might have led to a discontinuance of this suit, and which actually led to making new parties to it, was' out of time, and should not have been allowed. The ease ought to have been reinstated in the name of the original párties, and the suggestion of the defendant’s death, then made by the administrator of the plaintiff.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.