Fisher v. Allen

36 N.J.L. 203 | N.J. | 1873

The opinion of the court was delivered by

Van Syckel, J.

This is a suit on a promissory note against the defendants as joint and several makers. The defendant, Allen, died pending the suit, whereupon the plaintiff entered a nolle prosequi as to the surviving defendants, and obtained a rule of this court to proceed against the administrators of the decedent. The administrators now move to set aside this rule.

By our statute, (Nix. Dig. 1, § 2,)^* on the death of Allen, this action survived as against the other defendants. The suit could not be continued against the survivors, and the representatives of the deceased, because the one is to be charged, d& bonis propriis, the other de bonis intestatoris.

The third section of the act respecting abatement, applies to the case of a sole defendant.

By the entry of the nolle as to the two surviving defendants, the suit was discontinued.

The rule should be vacated.

* Rev., p. 1, § 2.