
    PRENTICE & AL. vs. WATERS.
    On the death of the defendant, and the appointment of a curator to his estate the plaintiff may demand the removal of the case to the court of probates.
    Appeal from the court of the first district.
   Martin, J.

delivered the opinion of the court. After issue joined, the defendant died, and his wife took letters of curatrixship on his estate, and the plaintiffs, on a suggestion of these facts, prayed for the transfer of the cause to the court of probates, which was accordingly ordered. The defendant afterwards prayed for, and obtained the rescission of the order of transfer, whereupon the plaintiffs appealed.

The legislature having given exclusive jurisdiction to the court of probates, of all claims against vacant estates, it follows, the jurisdiction of other courts is thereby taken away, and that all suits pending in such other courts, must be cumulated to the mortuaria in the court of probates, which granted the letters of curatorship; for otherwise the will of the legislature cannot take effect.

East'n. District.

April 1825.

It is urged that the plaintiffs may dismiss their suit, and institute it anew in the court of probates. This may be true; but the plaintiffs may, by doing so, lose many an advantage. Possibly prescription may have attached, the nature of the pleadings may have given him some legal and just advantage, which he may lose by dismissing his suit: he must at all events pay costs,

It is true, the legislature has pointed out no mode of transferring the record; but in taking away the jurisdiction of one court, and vesting it in the other, the last has been virtually possessed of the means of exercising its jurisdiction and that must be by the record being sent to it. Cum quid conceditur, conceditur et id per quod pervenitur ad illud.

It is therefore ordered, adjudged, and decreed, that the order of the district court, rescinding the order of transfer, be annulled, avoided, and reversed, and the order of transfer reinstated, and the case remanded to the district court, to be transferred to the court of probates, and the costs be paid by the appellee.

Whittelsey for the plaintiff, Hennen for the defendant.  