Majority
p. 630Bates vs. Green, survivor of Farlin. •ALBANY, Feb. 1839.
Headnote
Where there is an issue of law and an issue of fact in the same cause, and the latter is brought to trial before the determination of the former, there is no need of assessing damages contingently, if the issue of fact goes to the whole declaration.It is not necessary to serve upon the adverse party a copy of the suggestion entered upon the record of the death of one of the parties, especially where the truth of the suggestion cannot be denied.
In what cases it is necessary to serve a copy of a suggestion, under 2 R. S. 553, § 17 & 18, quere.
A motion was made in this case to set aside the circuit roll, verdict, and subsequent proceedings for irregularity.
p. 631
The plaintiff declared in assumpsit on .a promissory note; the defendants pleaded the general issue and a special plea that the note was obtained by fraud. The plaintiff put in a replication taking issue upon the last plea; to which replication the defendant demurred and the plaintiff joined in demurrer. On the circuit roll, the 'plaintiff entered a suggestion of the death of Farlin one of the defendants, and a general order that the issue so as above joined be tried. The cause was tried and a general verdict found for the plaintiff.
D. Burwell,
for the defendant, insisted that as there was an issue of law undisposed of at the time of the trial, the order for trial entered upon the circuit roll should have been in the nature of an award of venire tam quam. He also contended that the proceedings were irregular, because a copy of the suggestion of the death of Farlin had not been served upon the other defendant or his attorney, (which service it was shown in this case, had not been made,) and which the counsel insisted ought to have been made according to the requirement of the statute. 2 R. S. 553, § 17.
By the Court,
There was no necessity for an assessment of contingent damages, as the general issue, the only issue tried, went to the whole declaration. The demurrer reached only the second plea.
The suggestion of the death of one of the defendants, was properly entered upon the roll, 2 R; S. 386, § 1 ; and whatever may be the effect to be given by the court to § 17 and 18, of 2 R. S. 553, there is no reason for disturbing the inquest in this case, as it is not pretended that the suggestion is untrue. Whether the sections adverted to, apply to a case like this, it is not important now to inquire.
Motion denied.