Practice — Suggestion of death on the record.
The suggestion of a party’s death upon the record is enough, if undisputed, to have all the proceedings construed with it without amending the declaration. But the later proceedings must he properly entitled.
Mandamus applied for to compel the court to vacate an order denying leave to file an amended declaration on duly suggesting of record the death of a defendant. The relator claimed the declaration should be amended so as to show the change of parties.
Submitted and denied June 3.
J. W. Champlin for the writ.
The death of a joint defendant in an action of contract must be alleged and proved, Chitty’s Pl., 58; New Haven etc. v. Hayden, 119 Mass., 361; Cowley v. Patch, 120 Mass., 137; Larned v. Wilcox, 4 Mich., 333; Barnewall v. Sutherland, 9 M., G. & S., 380: 67 Eng. C. L., 380; and the declaration should be amended, Comp. L., § 5846, though in England and in New York a suggestion of the party’s death upon the record is enough, 2 Tidd’s Pr., 1119; 8 and 9 W. III., c. 11, s. 6; 1 Burrill’s Pr., 282; see 1 Green’s New Prac., 302, 303; witnesses sworn in the case as at first entitled could not be prosecuted for perjury, Rex v. Cohen, 1 Stark., 511; 2 Eng. C. L., 195.
Where a suggestion of the death of a party appears on the record, and no claim is made that it is untrue, it will stand as a sufficient showing to have all the proceedings construed with it. The proceedings, however, should afterwards in strictness be properly entitled, but there is no occasion for amendments.
Motion denied.
41 Mich. 3
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