Majority
p. 67Holcomb and another, Defendants in Error, ads. Hamilton. that the application was too late, the proceedings having ceased to be on paper ; 2 Finer's Abridg. title Amendment, letter H. pi. 17. Idem, page 313. letter G. pi. 2. in support of the rule, read the act of this state, which authorises the suggestion of the death of one defendant when the cause of action survives, and in answer to the objection in point of time, he cited 5 Durn. & East, 577.
Headnote
AFTER imparlance, but before judgment, I. S. one of the defendants died ; judgment was then entered against both and execution issued against the survivor, without any suggestion oiyhe record of the death of the other defendant; and oil error coram vobis, a rule had been taken to .show cause why the record should not be amended by suggesting the death of I. S. * .Whiting showed for cause,
Woods,
The case cited from Durnford & East is in point. Courts have of late, so long as the record is before thém, adopted the practice of granting all amendments to which the party would have been entitled as of course, provided that it be of no prejudice to the other party.
p. 68
^et the rule be made aboslute on payment of the costs of this motion and of the .writ of error.