
    Matthias Smith versus Lemuel Franklin & Al
    The surviving promisee cannot join with the administrator of the deceased promisee in an action. A writ of error may be returned and determined in a county other than that in which the original judgment was rendered.
    This was a writ of error brought by Matthias Smith, of W., in the county of Kennebeck, 1o reverse a" judgment recovered against him in the county of Bristol. The judgment complained of was rendered in the Court of Common Pleas for the county of Bristol, in June term, 1786, in favor of Lemuel Franklin of S., in the county of Bristol, and Jabez Barney of S. aforesaid, “ which said Jabez Barney is administra tor of the goods and chattels, rights and credits, of Israel Barney, late of S., deceased,” against “ Matthias Smith of W., in the county of Lincoln, 
      
       on a note of hand made by Smith to the intestate, in his lifetime, and the said Franklin jointly. The judgment was * entered in this form, viz„; “ It is therefore considered that the said Lemuel Franklin, and Jabez Barney, in his said capacity, recovei against the said Matthias Smith the sum of,” &c.
    The error assigned was that the said Lemuel Franklin, in his own right, and the said Jabez Barney, as administrator, as aforesaid, ioined in bringing the suit aforesaid, and that the judgment thereon rendered was in favor of the said Lemuel Franklin, in his own right, and the said Jabez Barney, in his said capacity of administrator as aforesaid, which by law could not be done.
    The defendants in error were called, but did not appear; and tho 
      Court reversed the judgment, but directed the clerk to tax no costs, the reversal being for error in law.
    
    
      Bridge, for the plaintiff in error.
    
      
       The now county of Kennebeck was then a part of the county of Lincoln.
      
    
   After the order to reverse had been pronounced, it occurred to the Court, that the judgment complained of was rendered in the county of Bristol, upon which a doubt arose, whether the Court sitting in this county (Kennebeck) had jurisdiction ; that is, whether the writ of error ought not to have been made returnable in the county in which the original judgment had been rendered, The Court took time to consider ; and on the next day. they said they were of opinion, that they had jurisdiction, and that the order to reverse must stand.

Judgment reversed,

(Sedgwick, Sewall and Thacher, justices, present.) 
      
      
         The writ of error was granted, on motion, at June term, 1804, in the county of Lincoln; and the minute on the record is, “ Ordered that a writ of error and sci.fa. to hear errors issue immediately.” Nothing was minuted, as to the place where the writ should be returnable. The practice is, to grant the writ in any county, and to return it to the Supreme Court holden for the county where judgment was rendered.
     
      
      
        V) It ought not, perhaps, to be concluded, because the Court decided in this case that the writ of error was returnable in this county, that therefore a writ of error may, at all times, and under all circumstances, be returned into any county other than that in which the original judgment was rendered; for it ought to be noticed, that in the prseent case, the plaintiff in error resided in the county where the writ was returned. And possibly the decision of the Court was grounded on the analogy between this case and that of bringing an action in the county in which one of the parties lives. Vide the act of Oct. 30, 1784, sect. 13. [stat. 1784, c. 28.)
     