
    FISHER v. ALLEN ET AL.
    1. Where in a suit on a promissory note against three defendants as joint and several makers, one of tlie defendants dies pending suit, the action survives against the other defendants, and cannot be continued against the survivors and the representatives of the deceased.
    2. The third section of the act respecting abatement, {Nix. Pig. 2, $ 3,) applies to the ease of a sole defendant.
    On motion to set aside rule, &c.
    Submitted on written briefs at November Term, 1872.
    For the motion, George A. Allen.
    Contra, J. N. Voorhees.
    
   The opinion of the court was delivered by

Van Syckel, J.

This is a suit on a promissory note against the defendants as joint and several makers. The defendant, Allen, died pending the suit, whereupon the plaintiff entered a nolle prosequi as to the surviving defendants, and obtained a rule of this court to proceed against the administrators of the decedent. The administrators now move to set aside this rule.

By our statute, (Nix. Dig. 1, § 2,) on the death of Allen, this action survived as against the other defendants. The suit could not be continued against the survivors, and the representatives of the deceased, because the one is to be charged, d& bonis propriis, the other de bonis intestatoris.

The third section of the act respecting abatement, applies to the case of a sole defendant.

By the entry of the nolle as to the two surviving defendants, the suit was discontinued.

The rule should be vacated. 
      
      
         Rev., p. 1, § 2.
     