
    Ferris’ Administrator, Respondent, vs. Hunt, Appellant.
    1. Under the new practice, where a plaintiff or defendant dies, the suit can he continued in the name of the representative in interest, only upon the voluntary appearance of the adverse original party, or after the service upon such party of a scire facias. The sixteenth section of article five of the practice act of 1845, is not repealed hy the new code.
    
      Appeal from Washington Circuit Court.
    
      J. W. JYoell, for appellant.
    
      P. PipMn, for respondent.
   Scott, Judge,

delivered the opinion of the court. ■

Thomas D. Yeats, administrator of Jabez Ferris, commenced suit in a justice’s court against James Hunt, where there was a judgment for the defendant. An appeal was taken to the Circuit Court. While this appeal was pending, Yeats died, and on motion, Levi Ashley was substituted as the plaintiff in the stead of Yeats, whose death was suggested. This was done without notice or consent, or the voluntary appearance of the adverse party, or scire facias.

1. Although the present practice act prescribes that, in the event of the death of a party, the court, on motion, may allow the^aetion to be continued by the representative in interest, yet that cannot be done but in subservience to principles of law. It would be against the first, rules of justice to permit a party in a court to take a step which might seriously affect his adversary’s rights, without his consent or without notice or scire facias. The sixteenth section of the practice act of 1845, art. 5, provides that all orders made for the substitution of any person as plaintiff or defendant, in place of the original plaintiff or defendant, shall be made, either upon the voluntary appearance of the adverse original party, or after the service upon such party.of a scire facias. We hold this section to be unrepealed by the late act, as it is silent in regard to the manner in which the opposite party is to be brought in when a substitution is to be made.

Judge Ryland concurring, the judgment is reversed, and the cause remanded; Judge Gamble not sitting.  