
    Chittenden County,
    December Term, 1826.
    
      Thomas Herring vs. David Selden.
    
    THE death of one of several plaintiffs or defendants pending, the suit and not1 suggested’on'the record', in1 a case where’ the cause of action survives, is not an error in fact for which* the judgment will’ be’ reversed’; .And* upon error brought for this-cause, judgment will be affirmed*in the name of the survivor*.
    This was a writ of error to reverse a judgment of the County Court. SilasRichards and David Selden, the present defendant,, as surviving partners of the late firm of Andrew Ogden & Co. of New York, commenced their action in Chittenden County Court, against Thomas, Herring, the plaintiff.in error,.upon several proim-isory notes executed by him to the firm aforesaid. After several continuances, a final judgment for a large amount,, was rendered in favor of Richards & Selden, against Herring, at the February term of said Court, 1823. This writ of error was thereupon brought alleging, as error in fact,that during the pendency of the action,, and previous to the term at which judgment was renr dered, to. wit, on the 13th day of September, 1822, at Liverpool, in England, to wit, at New York aforesaid, the said Richards dir ed. Plea, that there is no error, accompanied by a motion/ for liberty to amend tire record, by suggesting the death of Richards previous to the judgment below.
    
      A. Foote and Adams, for the. plaintiff in error, argued, That by the plea, die death of Silas Richards is admitted — 1 Bur. 410, 413. Sheepshanks et uxor vs. Lucas.
    
    Though by the statute, the death of one of the plaintiffs being suggested on the record, would have enabled the survivors to proceed with the suit, yet if tins suggestion he not made, the judgment is erroneous. — 3 Mod. 249. Capel vs. Salstonstal. — 2 Bac. Ahr. 493, 580, 500.— Cro. Eliz. 731. Price’s case.— 1 Salk. 8 and note. — 1 Bur, 410, Sheepshanks et uxor vs. Lucas. — 1 Will. 30, Wyn vs. Wyn.
    
    This error is matter of substance and cannot be amended.
    By the pleadings, Herring is not estopped from alleging the-death of Richards as error.— Cro. Eliz. 425,' Qermyn vs. Rolls, 121, Hughson vs. Webb. — 1 Bac. Abr. 18, 20. — 2 Bac. Abr. 193. — 1 Will. 30, 42, Wyn vs. Wyn..
    
    
      This Court has not the power to amend the record of the Court below. — 10 Mass. Rep-. 251, Hutchinson vs. Crossen. — 3 Salk. 31 and note.— If the record can be amended, it must be done by the County Court. — 1 Doug. 114. Richards vs. Brown. But the record ■cannot be amended. — 2 Blac. Rep. 1300, Cheverly vs. Morris. 1 Will. 30, Sabin vs. Long. — 2 Will. 147, Mariot vs. Lister. Amendments have been permitted only in cases of mistakes of the ’Clerk, and not when the mistake is die fault of the party.— ■5 Bur. 2730, Sho?~t vs. Coffin, Exr. of B. Coffin.
    
    
      ■Wan Mess and Thompson for the defendant in error. It is admitted that where a sole plaintiff or defendant dies before verdict or interlocatory judgment, it may be assigned as an error in fact, to reverse die judgment. But it is not so where one of several plaintiffs dies. — 2 Tidd’s Pr. 1107.
    Where diere are two or more plaintiffs or defendants in a per.■sonal acdon, and one or more of them die after judgment, execution may be had for or against die survivors, without a scire facias. But the 'execution in such case should be taken out in die joint names of all die plaintiffs or defendants otherwise it will not be warranted'by die judgment. — 2 Tidd’s Pr. 1028, 1029. — 1 Salk. 319 — 1 Ld.Raym. 244 — 9 Mass 14, 160.
    But on a suggestion of such death made to the court, an execution may issue in die name of the survivor alone. As no new person is introduced, diere is no occasion for a scire facias in such case, to revive the judgment.-9 Mass. 14, Hamilton vs. Lyman. — 9 Mass. 160,Bowdoinvs.Jordin. — 2 Tidd’sPr. 1028. — 9 Mass. 14,160.
    Where there are two or more plaintiffs or defendants, and one or more of them die pending the suit, if die cause of action survive to the surviving plaintiff or plaintiffs, or against the surviving •defendant or defendants, the writ shall not abate; but such death being suggested on the record, die action shall proceed. — Stat. 1 Vol. p. 82, s. TS. — Stai. 8 St 9 W. HI. s. 7.-2 Tidd’s Pr. 1027. — 1 Swift’s Dig. 609.
    Where there are several parties, and one of them dies before judgment, it may be entered by or against the survivors. — 1 Tidd’s Pr. 496. — 1 Will. 312. — Barnes, 40, 53.
    The death of one of the plaintiffs, will not even abate the suit.; and a fortiori, the judgment will not, for that cause, be reversed on error. The judgment will be a bar to another action for the same cause ; and as /the interest survives, the surviving plaintiff may receive payment and discharge the judgment, and no. injury is done to the defendant.
    Where one of two plaintiffs died before interlocatory judgment, and the suit nothwithstanding went on to execution in the name of both ; on a motion to-set aside the proceedings for this irregularity, the court permitted the surviving plaintiff to suggest the death of the other on the roll, and to amend the capias ad satisjaciendum, without paying costs. — 2 Tidd’s Pr. 1028. — 5 T. Rep. 577.
    Nothing can be. assigned for error, which is aided by appearance, or by not talcing advantage of it in due time. If a married woman brings an action in her own name, and the defendant pleads in bar to the action, he shall never afterwards assign the marriage for error ; for it shall be accounted his folly to neglect the proper time for taking the exception, by plea in abatement.— 2 Saund. 101. a. — 1 Swift’s Dig. 790, 791.
    So a writ of error lies for some error or defect in substance only, that is not aided, amendable, or cured at common law, or by some of the statutes of amendments or jeofails. — 2 Tidd’s Pr. 1056.
    Where the error or defect is amendable, an actual amendment is never made, but the benefit of it is attained by the court’s overlooking the exception. — 2 Tidd’s Pr. 840.
    Thus, if a judgment be substantially right, it will not be reversed for any informality; or, if it should be reversed, the court would immediately enter anew judgment. — Inhabitants of Buck-field vs. Inhabitants of Gorham, 6 Mass. 445.
    So, if a judgment be rendered upon a verdict, in an action where an issue has been tendered but not joined by the parties, the judgment cannot be reversed for that cause. — 9 Mass. 532, Whiting vs. Cochran.
    
    Ifjudgmenthe rendered in any process at any term subsequent to its being entered, and there be no entry of its continuance, the judgment will not be erroneous. — 11 Mass. 417.
    As in this case, tire error, if any, was amendable, the court will not reverse the judgment, but give the surviving plaintiff the benefit of the amendment by overlooking the exception. — 2 Arch. Pr.233. — Coleman’s cases, 61. — 2 Johns. 184.
   Royoe, J.

delivered the opinion of the Court. By the record -complained of, it appears that the suit below was instituted in as-sumpsit upon several promisory notes, and was prosecuted to final judgment in favor of Silas Richards and David Selden against file plaintiff in error,who now alleges, as matter of error in fact, that between the commencement of that suit, and the rendition of judgment therein, Silas Richards died; — for which reason he prays that the judgment may be reversed. The defendant has pleaded that there is no error in the record, which is admitted to be in the nature of a demurrer, and to imply a confession of the death of Richards, as alleged by the plaintiff in error. The joint cause of action in favor of Richards & Selden, was of a character which, by law, would at all times, upon the death of one of them, have survived to the other. But without the aid of statute, the death of one of the plaintiffs pending the suit, would have vitiated the whole proceedings' and judgment; so that at common law, filis writ of error would lie. Statutory provisions, however, have long existed on this subject’, the effect of which is, that on the death of a sole plaintiff or defendant, in a case where the cause of action survives, the suit may or may not abate, as die legal representative shall or shall not become a party to it; and that wjien one or more of several joint plaintiffs or defendants dies,the suit shall not abate,but proceed in favor of,or against, the survivors. It is true that the statute says, such death being suggested upon the record.” In this case, the death of Richards was not suggested on the record, and the whole question is, whether for that cause the judgment is erroneous, and must be vacated or reversed. A writ of error, like other process of the law, is intended for the relief of some injury or grievance, and supposes a defect or error in substance, in the commencement, progress or termination of some judicial proceeding, in a court of record. Now it is difficult if not impossible to conceive how the omission to suggest the death of Richards, could have affected any right of the surviving parties. And hence, as the statute has declared that the death of a co-plaintiff in such a case, shall not defeat the action, it would seem that the only effect of sustaining this writ would be, that judgment in the original suit should be immediately entered up in favor of Seldon alone. The name of Richards must be regarded as surplusage in all proceedings subsequent to his death, as in the case of an execution issued in the joint names of several, when some of them have died after judgment. It is proper that upon tire suggestion of either party, this formal impropriety should be corrected, but the correction need not involve the overthrow of the first judgment. The judgment of the county court must therefore be affirmed in the name of Sel-den, and this supercedes the necessity of acting on the motion to amend.

A. Foote and Adams, for fine plaintiff in error.

Fan JYess and Thompson, for defendant in error.

Prentiss J. being of counsel in the cause did not sit at the trial.  