
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1805.
    Denoon v. O’Hara et al.
    
    If either party die before the determination of a roetion pending in the Court of Appeals, the suit shall not abate ; but the same may, notwithstanding such death, be heard and determined, without any regular or formal notice to the representatives of the deceased party.
    The court may, where it is proper and necessary, direct a judgment to be entered up, (after the determination of a motion,) nunc pro tune.
    
    In this case, the plaintiff obtained a verdict in Charleston district, before Grimke, J., and the defendants gave notice of a motion to be made in this court for a new trial; but, before the motion could be made, the plaintiff died. J. Ward, for the defendants, submitted^ whether the motion could be heard, as he said the party, plaintiff, ■was out of court; and whether, the action had not abated by his death ? And he insisted, that the judgment, which had been entered up for tho plaintiff, pursuant to the rule of court, being conditional only, ought to be set aside, in consequence of the plaintiff’s death before the decision of the motion for a new trial. He argued, that the rule of court which authorizes the party in possession of the record, to enter up judgment thereon, pending the motion for a new trial, is unconstitutional and void; for, as the constitution requires the judges to meet at certain places at the conclusion of the circuits, ior the purpose of hearing and determining all motions which may be made for new trials, and in arrest of judgment, it certainly intended to secure to every one the right of preferring such mo. tions, and of having them heard and determined by the judges, at such times and places as the constituiion and acts of assembly have prescribed. State Con. Art. 10, §. 3, A. A. 1799, Suppl. Indict. Act: And, therefore, wherever any such motion has been made, the suit cannot be at an end until such motion is determined ; and, consequently,'no judgment can be legally entered up, until such determination has taken place. And if, in the mean time, one of the parties dies, the matter in controversy being sub judice, and undetermined, the suit must abate. At any rate, this motion cannot be heard, without giving notice first to the personal representatives of the deceased, by sci. fa.
    
    Cheves, for the plaintiff.
    The rule of court does not oppugn the constitution. The right of having motions for new trials heard ■and determined before the judgment can operate, is not infringed by the rule. If the decision of the circuit court is affirmed, the conditional judgment under the rule has then, and not till then, conclusive effect. The effect of the rule is to give it an operation by way of lien, or a binding effect, from a time prior to the determination of the motion. But this is warranted by principles of law, and is consonant to reason and justice. This the court would be competent to do, without any rule, by ordering their judgment to be entered up, after the decision of' the motion, nunc pro tunc. Barnes, 262. lb. 255. Fhe plaintiff ought not to suffer by the delay of the court, at the instance of defendant. General rules are established for attaining justice, with ease, certainty, and dispatch. 1 Burr. 301. The court will relax their own rules, upon sufficient grounds, to attain justice. 4 Burr. 2271. Doug. 171. Judgment was pronounced in 1.767 — defendant afterwards died in the same year; and in 1769, on motion, judgment was ordered to be entered up as of Trinity Term. 1767. before the defendant’s death, 4 Burr. 2277. Cites 6 Mod. 59, 60. The stat, 17 C. 2, c. 8, and 8 and 9 W. 3, c. 11, (see P. L. 211, 381,) enacts that death of either party between verdict and judgment, or after interlocutory judgment, and before final judgment, shall make no abatement. The act of assembly of 1785, P. L. 212, is express, “that in all actions, in any of the courts, m this State, if either party shall die between verdict and judgment, there shall be no abatement of such action, but the same shall proceed as if both parties were living.” Here then, should the judgment already entered up be considered as void, yet the action shall proceed as if both parties were living, because the plaintiff was in possession of the verdict at his death. After verdict, judgment must follow of course, unless stayed by the court, or by operation of some law ; which oughr not to b- construed to work, by delay, a mischief to the party delayed ; especially where such delay is produced by means of the adverse party. The constitution did not alter the law, but only provided an appellate tribunal for the execution of the law. The law was before, that parties aggrieved by any proceedings in the district courts, might move for new trials, or in arrest of judgment, under such restrictions, and in such manner, as the judges might think proper to establish by rules or orders of court. Act of assembly of' 1789. P. L. 489. The same restrictions still exist, and the court have still the same power to regulate such motions.
    J. Ward, in continuation :
    The 56th rule of court provides that judgments entered up pursuant to the 50th rule, shall he set aside, if either of the parties die before the decision of the motioa. Therefore, in this case, the judgment must be set aside. The 50th ru*e’s oppressive, and is against the spirit of the constitution, which declares, that excessive bail shall not be taken. Creating a lien on a man’s property, to answer the final determination of a cause still pending, is, in effect, compelling him to give excessive and unreasonable security or bail.
    To this argument of Mr. Waro, Mr. Cheves replied as before, and quoted 4 Burr. 2271, &c.; and moreover argued that the 56th rule vyas contrary to law, being repugnant to the act of assembly of 1185. P. L. 381, — see A. P. L. 212. x
   The court,

(Wat.es, Bat, Brevard, and Wilds, Justices,)

were of opinion, the motion could be heard and decided, notwithstanding the death of one of the parties, as the act of Í785 provides for such cases, and does not require any process to revive the action, or give notice to the representatives of the deceased party : and also that the 56th rule is void, being contrary to this provision of the act of 1785. The court also inclined to think the 50th rule was unnecessary, as the court may, in every case where it is proper and necessary, direct (he judgment to be entered up, (after the determination of a motion,) nunc pro tunc. They however declared, that by the constitution and laws of the State, every man had a right to have iiis cause reviewed by the judges, at their meetings under the constitution, provided he should conform to such rules and orders of court, as aie made, (and which are proper and necessary,) in order to bring his motion before the judges ; and therefore, until the final decision of the cause, no final judgment can be entered up. The court, however, by sanctioning and affirming the former judgment entered up under the 50th rule, may give it the effect of a judgment entered up nunc pro tunc: and perhaps may, With equal justice and propriety, sanction the issuing ot an execu. tion prior to the final decision, winch may be rendered good by relation. But the court did not give any decided opinion as to these last points, as it was not necessary, in the decision of the quesiion immediately before the court. It was ruled that the motion should be heard, as if both parties were alive. An argument then took place upon the principal questions in th*- cause, and the court decided that a new trial should not be granted. There was no point of consequence worth noting down, which occurred in the argument or adjudication of the case, upon the principal motion.

Note. Error. Judgment affirmed. It was alleged, that since the time when tile court took to advise, the defendant in error was dead; and therefore it wa$ played that judgment might be entered nunc pro tunc, which was done accordingly. Cumber v. Wane, 1 Stra. 426. See Barnes, 186. 1 Burr. 414. 1 Bl. Rep. 95.

See 3 Caines’ N. Y. T. R. 106 Bird, Savage & Bird v. Pierpont. Motion to enter up judgment on a verdict, after case moved to the supreme court, in order te bind the defendant’s landsobjected that it might as well be asked on suing the writ. That it was in effect requiring the defendant to give a mortgage, before it is determined the plaintiff has any vig-ht. The lapse of time before a decision, and that defendant would suffer no inconvenience by the motion, were reasons urged in support of the motion. Sed per curiam. The motion cannot be granted. It would be a mischievous and troublesome practice. A verdict is no evidence of right The delay is net a good reason: it occurs in other eases, equally inconvenient. There is no such practice in England. See Wood v Gulston Style, 466 1 Burr 334

M’Cants & al. v. Rogers, decided at Columbia, April, 1813. A conditional judgment entered up, and execution pending an appeal in the constitutional-court, were preferred to another judgment and execution, which had been en-' tered up and issued pending the appeal, but after the conditional judgment.-  