
    Young, Administrator of Peter Elrod, vs. Officer.
    The mere suggestion of the death of a party, (which suggestion is on record,) does not establish the death as a fact, upon which an abatement of the suit can be grounded. The court must he satisfied that the suggestion is true and have it so entered upon the record.
    A suit may be abated at the second term after the death has occurred, if no administrator appears and asks a revival. But if an abatement is not asked for until an administrator does appear, although more than two terms have elapsed since the death, the suit may be revived.
    On the 16th January, 1830, Peter Elrod sued Robert Officer to April term of the White county court, in a plea of trespass on the case, and at the return term issue was joined. At January sessions, 1831, a verdict and judgment were had for the plaintiff for one hundred and fifty four dollars. From this judgment the defendant, Robert Officer, appealed to the circuit court.
    At the February term, 1831, of the circuit court of White county, the cause was docketed and continued by the defendant, Officer. On the 28th day of said month, the following entry was made: “this day came Nathan Haggard, attorney for the defendant, here in open court, and suggests the death of the plaintiff, since the com' mencement of this court.
    Thus the cause stood until February term, 1832, when it was revived in the name of James Young, by virtue of a private act of assembly. At May term, 1833, judgment was had in the name of Young for one hundred and forty one dollars. A writ of error was prosecuted to the supreme court, where the judgment of December, 1833, was reversed, because the act of Assembly was unconstitutional and void, and the cause was remanded to the circuit court to be proceeded in.
    At the May term, 1834, of the circuit court, on the production of letters of administration, it was moved the suit be revived in the name of James Young, as administrator of Peter Elrod. This the court refused, and on motion of Officer’s counsel, ordered the suit to be abated, because no step had been taken therein for more than two terms next succeeding the suggestion of the death of Elrod. Young was appointed administrator of Elrod at the January sessions of the White county court, 1834, and applied to revive at the earliest day.
    
      M’Cormick and Turney, for plaintiff in error.
    
      Haggard, for defendant in error.
   Catron, Ch, J.

delivered the opinion of the court.

Was the appeal correctly abated? On the 28th February, 1831, N. Haggard, Esq. counsel for Officer, suggested the death of Elrod,. but it does not appear this suggestion was admitted to be true; such suggestions are frequently made in the courts for the purpose of letting in proof of the fact; generally it is not denied, and stands as a recorded fact, but the mere suggestion by counsel does not establish it as a fact on which an abatement can be grounded. To permit this would be fraught with much danger where a party resides abroad. The court must have it established to its satisfaction, and enter it as a fact. It therefore does not appear from the record that Peter Elrod was dead, and the suit could not be abated. But suppose it did appear, as no doubt the truth is, could Officer, the appellant, under the circumstances, abate his appeal? The administrator resisted it. The cause stood in the circuit court, after the reversal in the supreme court, as it stood at February term, 1831, the proceeding under the act of assembly being merely void.

The act of 1785, ch. 2, sec. 2, provides, “that no appeal in any cause or court whatever, shall abate by the death of either plaintiff or defendant, but may be proceeded in by application of the heirs, executors, administrators or assigns of either. By the act of 1786, ch. 14, sec. 1, the administrator may carry on any suit or action in court, after the death of plaintiff or defendant, as appeals are carried on by the act of 1785: and fey the act of 1789, ch. 87, sec. 7, it is provided, where a term of the couit shall intervene between the death of a plaintiff or defendant, and the qualification of the administrator, the intervention of such term shall not work any abatement or discontinuance.

Had Officer established the fact of Elrod’s death, he had the right, at the second term after the time of the death occurred, to abate his appeal,- if no administrator appeared to prosecute the suit, as representative of Elrod. 1 Haywood’s Rep. 455: 2 Haywood’s Rep. 65: Taylor’s Rep. 134. But if he did not exercise the right until an administrator appeared, the court would not then allow it, because the acts of assembly provide generally* that appeals and suits shall not abate without limiting the time; and the courts, for the sake óf convenience, have by construction of the acts of assembly, permitted the abatement to be entered of record at the second term on the motion of the living party: but no instance is known wheré, if the administrator appeared and asked to revive and prosecute the suit at any time before it was actually abated by order of the court, that' he was refused the ex-,erciseof the right; and itis apprehended it cannot be with-holden from him.

The judgment will be reversed and the cause remand" ed to the circuit court, where it will be revived and proceeded in.

Judgment reversed.  