Zanesville Canal & Manufacturing Co. v. Administrator, with the Will annexed, of Granger , 7 Ohio 165 ( 1835 )

Judge Collett

delivered the opinion of the court:

At common law, when a judgment was rendered against two, and one died before execution, the judgment was held to subsist as. several against the survivor. No process was recognized to maka the representatives of the deceased a party to the judgment. If the deceased was a surety, it was held that the defect in the law to charge him «ould not be aided in equity. Our legislature seem to-have considered these rules of decision as not in accordance with, justice. In this view they have made statutory provisions to supply the defects. By the practice act of 1816, it is provided that where there are two or more defendants and one or more die pending the action, it should proceed against the survivors ; and if the cause of action survived against the representatives of the deceased, they might be made parties to a final judgment when obtained by scire facias. This provision has in substance been ever since continued in force. We believe it changes the common law rule as well in respect to judgments ^rendered as to suits pending. It gives full remedy at law and embraces as well the case of sureties as of principals. All may be made defendants in one joint process, which is a safe and convenient mode of proceeding, introduced by legislative provision to expedite the administration of justice.

Judgment for the plaintiffs.